Ordinance No. 12,178ORDINANCE' NO, 12,178
AN ORIANANIC'E CIF IIJE ('IT)" (.�'OUNCIL OF TILE, CITY CW BA1y-1 '()1V N. TEXAS,
AUTTIORIZITZ AND DIRIVIING uIE crVY MANA(fER AND UrY CIERK 11)
EXECUTE AND AI TT`,S'l—F0 A CONTRACT "71IT! I R)RIZON INTERNATIONAL GROUP,
11C. FOR l lE NIEW FIRE STATION No, 7 PROJF,('T. A1,1THORIZING PAYMENT OF A
SUM, OF TWO MILLK)N SIX ]JUNDREA) 111,AY-ONETTIOUSAND FIVE, HUND1CI-1) AND
N0/100 DOLLARS ($2.651,504( (yj NIAIJJNG (YrHl-..R PROVISIONS RELATED TI-II.-,RIT0-,
AND PROVIDING IT)R 11 IE EFFIVII VE DA,rF 11 IERFOF.
*****M* * * * * **'* : * * * * * *** * *' *.%# ** * * * * * * * * * * * * * * * * * 1r. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * N * * * * * * * *
WHEREAS, We City Cbmicil of We CTy of Bapown did advvi-the In bids for the new Fire Station No, 7
Project to be received on February 51 2013; and
W1 [ER] As. notice to bidders as to the We and pbco Hen and where the bids vwould be publicly opeiwd
Vexas Local Government ("ode Annotined § 252011; arld
and reared aloud was, published pursmant to pinovisions W
WA IERFAS, all bids vvere opened and publicly read at Chy [OH at 2MO o7clock ym. Luck, Febloary 5,
2013, as per published notice to bidders, NOW TI
IT ORDAINED BY TI IF, CITY CO(JNCIL ()l FIlF (ATY OF I3AYT0NVN,TFXAS:
Section 1: '11al the City (luncil of be (11 of Haylo"rl hereby acceps the bid of Ilorizon
hieniationud (Kroup, LIE, for We new Fire Station No. 7 11rcliect according
, to tile plans and specilications set forth
by the (AyOs engincer Ior the Imse bkl and lia• bid a4ternme nwnber 8, and mahoiVes payment of ail amount oll
Two MILLWIN SIX HUNDRED FIFFY-ONE THIOUSAW FIVII HUNDRED AND NO/[00 DOLLARS
(S2,651.500.00): based upon the hunp scum coos specified in the hid Rw the Reese bid and bid aheimaw my it and the
Chy Manager alul be Cly Unk or we City are hereby authorized and directed to execute and attest to as conMM
With Horizon International Group, ror tile above- described pr(jeo, said contract Containing the plans,
specifications, and requirements of the City's engineer and apprqmlate bond requirements in accordance with the
pnnisions of Was (i nornment Code. ChaNer 2253.
Section 2: Thm the City Council hereby, appropriales and authodus as contin gency allo"ancu in ail
amount of FIFTY AIR)USAND AND N(VI(A) DOLURS ($5V(100A)O) to be used in We sole di anion of le C),
M"'Ina,ger Al furtherance ofthe iniprovellicills described ill Section 1.
Section 3: That purmant to the pnwNKms ol"I"exas I,ocal Government Code Annotated § 252.0-18,
the City Vvlanager is hereby granted general awhorhy to approve a,, chngc order involving, as decrease or an
increase in costs or FIFTY 11 KHJSAND AND INO/I 00 I-)OLLARS ($51000AD) or less, subjed to We pavision
that the original contract price specified in Section I hereof may not be increased by nee -4an twen,five pement
(25%) including the coati Wolcy inueme awhol-ized in Section 2 hereof or decreased bw more than twenty -five
percent (25%) whinna Me cotNott orthe contractor to such decrease.
Section 4: This (Wdhmnce shnH We efruo inunediately from anda passage by, the City Council
orwe oy or Bmwi. r
INTRODU(TD. READ and PASSED by the affirmadve vow of the C (buncil of We City of Haylomil
this the l4th day ofFebru'arv, 2013,
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STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND CONTRACTOR
THIS AGREEMENT is entered into by and between the City of Baytown (the "OWNER") and
Horizon Group International, LLC the"CONTRACTOR" for the City of
Baytown Fire Station No. 7 Project.
1. DEFINITIONS OF TERMS
77 1.01 CALENDAR DAY
-= The term calendar day means any day of the week or month,no days being excepted.
1.02 CITY or OWNER.
Whenever the word City or Owner is used, it shall mean and be understood as
referring to the City of Baytown, Texas, its officers, agents, representatives, and
employees.
1.03 CONTRACT DOCUMENTS.The Contract Documents shall consist of the Signed Standard Form of Agreement,
Performance Payment Bonds and Maintenanc
e ce Bonds(when required),Addenda,
Plans, Specifications, Proposal (Bid' Form), Notice to Bidders, Instructions to
Bidders, Scope of Work and all modifications thereof incorporated in any of the
LLJ documents before the execution of the Agreement.
1.04 CONTRACTOR.
L Whenever the word CONTR,4CTOR is used it shall mean the . erson� persons,
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partnership, or corporation who has agreed to perform the work embraced in these
Contract Documents, including the Notice to Bidders, Instructions to Bidders,
Proposal(Bid Form),the Standard Form of Agreement,Performance Bond,Payment
• Bond,Maintenance Bond, Scope of Work, any and all Technical Specifications for
General Requirements and Site Work; and CONTRACTOR's Bid.
1.05 EXTRA WORK.
The term Extra Work as used in this contract shall be understood to mean and include
all work that may be -required by the OWNER or the OWNER'S
REPRESENTATIVE if approved by the OWNER in writing prior to the work being .
done by the CONTRACTOR to accomplish any change,alteration or addition to the
plans and specifications or any work order issued under this Contract if the work is
not reasonably implied by the specifications as determined by the OWNER.
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1.06 FINAL COMPLETION.
The term final completion as the same pertains to the plans and specifications or a
work order shall mean that all work has been completed in accordance with the plans
and specifications or work order,all such work has been inspected and satisfactorily
completed as determined by the OWNER'S REPRESENTATIVE, all payments to
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materiahnen and subcontractors have been made for the work specified in the plans
and specifications or work order,all documentation and warranties,if any,have been
L submitted, all closeout documents have been executed and approved by the
OWNER'S REPRESENTATIVE and the OWNER and the OWNER'S governing
body has accepted the Project.
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1.07 INTERPRETATION OF PHRASES.
Whenever the words directed,permitted, designated,required, considered necessary,
pprescribed, or words of like import-are used it is understood that the direction
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requirement, permission, order, designation, or prescription of the OWNER is
intended. Similarly,the words approved, acceptable, satisfactory,or words of like
7 import shall mean approved by, accepted by or satisfactory to OWNER.
7 1.08 NONCONFORMING WORK.
L The term nonconforming work shall mean the work or any part thereof rejected by
the OWNER'S REPRESENTATIVE or the OWNER as not conforming to the
Contract Documents.
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1.09 OWNER'S REPRESENTATIVE.
Whenever the words OWNER'S REPRESENTATIVE or REPRESENTATIVE are
v used, they shall mean and be understood as referring to the City Engineer or his
designee or the design professional designated by the City Council under whose
supervision the Specifications were prepared and who is hereby authorized to act for
the OWNER and inspect and issue instructions,but shall not directly supervise the
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CONTRACTOR or persons acting on behalf of the CONTRACTOR.
1.10 PARTIES.
The term parties shall include the OWNER and the CONTRACTOR.
1.11 PROJECT.
The term project as used in this agreement shall be understood to mean and include
all that is required to obtain a final product that is acceptable to the OWNER. The
term work shall have like meaning. This project includes all work required as
outlined in the Scope of Work. If specified in the Scope of Work,the project shall be
identified in separate work orders issued by the Owner's Representative and may be
l.__. required to be performed after normal working hours if so stated by the OWNER in
the work order.
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Li 1.12 SUBCONTRACTOR.
The term subcontractor,as employed herein,includes only those hired by and having
a direct contract with the CONTRACTOR for performance of any work or service
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relating in any way to the project. The OWNER shall have no responsibility to any
subcontractor employed by CONTRACTOR for performance of work on the project
contemplated by this Agreement,and any said subcontractors shall look exclusively
to the CONTRACTOR for any payments due the subcontractor.
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1.13 WORK.
The term work as used herein shall mean and include all that is required to obtain a
j final product acceptable to the OWNER. The term project shall have like meaning.
This project includes all work required as outlined in the Scope of Work. If specified
in the Scope of Work. If specified in the Scope of Work,the work required herein
shall be specified in separate work orders issued by the Owner's Representative and
may be required to be performed after normal working hours if so stated by the
OWNER in the work order.
1.14 WORK ORDER.
If specified in the Scope of Work,this contract shall be comprised of separate work
4 orders,which shall cover the OWNER'S annual project needs as contemplated at the
time of the execution of this Agreement, including emergency repairs. Each work
order shall be fully and finally completed within thirty(30) calendar days from its
issuance unless otherwise expressly stated in the work order.
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2. CONTRACT DOCUMENTS.
2.01 COMPLEMENTARY DOCUMENTS.
The Contract Documents comprise the entire agreement between the OWNER and
the CONTRACTOR concerning the project. The Contract Documents are
complementary,and what is called for by any one shall be as binding as if called for
by all.
2.02 PRIORITY OF DOCUMENTS.
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In case of conflict between any of the Contract Documents,priority of interpretation
shall be in the following order:
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2.02.01 Addenda to this Agreement,
2.02.02 This Signed Standard Form of Agreement,
2.02.03 Scope of Work,
2.02.04 Instructions to Bidders,
2.02.05 Notice to Bidders,
2.02.06 Specifications,
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2.02.07 Plans,
2.02.08 Performance, Payment and Maintenance Bonds, and
2.02.09 Proposal (Bid Form).
2.03 AMENDING CONTRACT DOCUMENTS.
No amendments to this Agreement shall be effective and binding until it is reduced
to writing and signed by the duly authorized representatives of both parties.
2.04 ACCESSIBILITY OF THE CONTRACT DOCUMENTS.
Where applicable, the CONTRACTOR will be furnished two (2) sets of Contract
Documents for its use during construction. Specifications provided for use during
construction shall be furnished directly to the CONTRACTOR only.
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2.05 SPECIFICATIONS.
2.05.01 The CONTRACTOR shall distribute copies of the specifications to
suppliers and subcontractors as necessary. The CONTRACTOR
shall keep at least one copy of the specifications accessible at the
work site with the latest revisions noted thereon.
2.05.02 All specifications and copies thereof furnished by the OWNER shall
not be reused on other work, and, with the exception of the signed
contract sets, are to be returned to OWNER on request, at the
completion of the work. Nothing herein shall be construed as
granting the CONTRACTOR,any subcontractor or supplier or other
person or organization performing or furnishing any of the work
pursuant to this Agreement any title or ownership rights in any of the
drawings, specifications or other documents (or copies thereof)
prepared by the OWNER'S REPRESENTATIVE.
3. OWNER'S REPRESENTATIVE.
3.01 RESPONSIBILITY AND AUTHORITY.
The project shall be administered by the OWNER'S REPRESENTATIVE,who shall
assume all duties and responsibilities and have the rights and authority assigned
either to it or the OWNER in the Contract Documents,including,but not limited to,
the following:
3.01.01 The OWNER'S REPRESENTATIVE shall periodically review and
shall inspect the work of the CONTRACTOR as described in Section
3.02.
3.01.02 The OWNER'S REPRESENTATIVE shall appoint from time to time
such subordinate supervisors or inspectors as the OWNER'S
REPRESENTATIVE may deem proper to inspect the work
performed under'this Agreement and ensure that said work is
performed in accordance with these Contract Documents.
3.01.03 The CONTRACTOR shall regard and obey the directions and
instructions of OWNER'S REPRESENTATIVE, any subordinate
supervisors or inspectors appointed ' by the OWNER'S
REPRESENTATIVE provided such directions and instructions are
consistent with the obligations of this Agreement.
3.01.04 Should the CONTRACTOR object to any orders by the OWNER'S
REPRESENTATIVE or any subordinate supervisor or inspector
appointed by the OWNER'S REPRESENTATIVE, the
CONTRACTOR may within two (2) calendar days from receipt of MR)
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such order make written appeal to the OWNER'S City Manager for
his decision.
3.02 INSPECTIONS. The OWNER'S REPRESENTATIVE shall make visits to the site at
intervals appropriate to the various stages of construction, appropriate to verify
,. CONTRACTOR'S payment requests,and as OWNER'S REPRESENTATIVE and/or
OWNER deems necessary,in order to observe as an experienced and qualified design
professional the progress and quality of the Work. Such visits and observations by
OWNER'S REPRESENTATIVE are not intended to be exhaustive or to extend to
every aspect of CONTRACTOR'S work in progress or to involve detailed inspections
RIM of CONTRACTOR'S work in progress beyond the responsibilities specifically
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assigned to OWNER'S REPRESENTATIVE by the OWNER. Based on information
obtained during such visits and such observations, OWNER'S REPRESENTATIVE
will determine if CONTRACTOR'S work is proceeding in accordance with the
Contract Documents, and OWNER'S REPRESENTATIVE shall keep OWNER
informed of the progress of the Work.
3.03 LINES AND GRADES. Unless otherwise specified,all lines and grades,including
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. horizontal and vertical control data points to establish baselines and benchmarks for
locating the Work, shall be furnished by the OWNER'S REPRESENTATIVE;
however, construction staking shall be performed by the CONTRACTOR.
Whenever necessary,construction work shall be suspended to permit performance of
this work,and the CONTRACTOR shall be allowed no extra compensation therefor.
The CONTRACTOR shall give the OWNER'S REPRESENTATIVE ample notice of
f the time and place where lines and grades will be needed. All stakes, marks, etc.,
shall be carefully preserved by the CONTRACTOR, and in case of careless
destruction or removal by him or his employees, such stakes marks etc. shall be
replaced at the CONTRACTOR'S expense.
t 3.04 PAYMENTS FOR WORK.
The OWNER'S REPRESENTATIVE shall review CONTRACTOR'S applications
for payment and supporting data,determine the amount owed to the CONTRACTOR
and approve,in writing,payment to CONTRACTOR in such amounts;such approval
of payment to CONTRACTOR constitutes a representation to the OWNER of
OWNER'S REPRESENTATIVE'S professional judgment that the work has
progressed to the point indicated to the best of his knowledge,information and belief,
but such approval of an application for payment to CONTRACTOR shall not be
deemed as a representation by OWNER'S REPRESENTATIVE that OWNER'S
REPRESENTATIVE has made any examination to determine how or for what
y , purpose CONTRACTOR has used the monies paid on account of the Contract price.
4. COMMUNICATIONS.
4.01 The CONTRACTOR shall forward all communications, written or oral, to the
OWNER through the OWNER'S REPRESENTATIVE.
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4.02 WRITTEN NOTICE.
Unless otherwise specified,written notice shall be deemed to have been duly served
if delivered in person to the individual or to a member of the firm or to an officer of
the corporation for whom it is intended, or if delivered at or sent by telecopier,
overnight or facsimile transmission or if delivered or sent by certified or registered
mail to the last business address as indicated herein. Each party will have the right to
change its business address by giving at least thirty(30)calendar days'written notice
to the other party of such change. Notice given by mail shall be deemed given three
(3) calendar days after the date of the mailing thereof.
5. AWARD OF CONTRACT.
5.01 On or before the execution of this Agreement,the CONTRACTOR shall deliver to
the OWNER all documents,bonds, and certificates of insurance required herein.
5.02 The CONTRACTOR shall be prepared to perform the work in the most expedient
manner possible due to the commencement of the time for final completion.
5.03 The work shall be commenced within ten(10)calendar days of the date specified in
the notice to proceed. In the event of any dispute,the records of the OWNER shall
be conclusive evidence as.to the commencement date.
5.04 Time is of the essence in this Agreement.
6. WORK.
6.01 The CONTRACTOR shall complete and be responsible for all work as specified,
indicated, or described in the Contract Documents. The CONTRACTOR shall
complete and be responsible for all Extra Work as described in this Agreement. All
work done and all materials furnished shall be in strict conformity with this
Agreement,the Specifications,and other Contract Documents. In the event that
the CONTRACTOR fails to perform the work as required for final completion, the
OWNER may contract with a third party to complete the work and the
CONTRACTOR shall assume and pay the costs of the performance of the work
specified or contemplated by the Contract Documents.
6.02 Unless otherwise stipulated, the CONTRACTOR shall provide and pay for all
materials, supplies, machinery, equipment, tools, superintendents, laborers,
insurance, fuel,transportation, and all other facilities and utilities necessary for the
execution and completion of the work specified or contemplated by the Contract
Documents.
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6.03 PERMITS, FEES,AND LEGAL COMPLIANCE.
6.03.01 The CONTRACTOR shall secure and pay all permits,fees,licenses,
and inspections necessary for the proper execution and completion of
the work. The CONTRACTOR will not,however,be required to pay
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for any permit fees for permits to be issued by the City of Baytown,
which will be waived in conjunction with this Agreement.
6.03.02 The CONTRACTOR shall give all notices required by law and
comply with all laws,ordinances,regulations,codes,rules and lawful
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orders of all public authorities bearing on the performance of the
v work.
6.04 TAXES. The OWNER qualifies for exemption from state and local sales tax
pursuant to the provisions of Article 20.4(F)of the Texas Limited Sales,Excise and
Use Tax Act.However,if any taxes are applicable to the Work,the CONTRACTOR
shall pay sales, consumer, use and similar taxes as legally required.
6.05 SHOP DRAWINGS. The CONTRACTOR shall submit to the OWNER'S
REPRESENTATIVE,with such promptness as to cause no delay in his own work or
in that of any other contractor,checked copies,unless otherwise specified,of all shop
and/or setting drawings and schedules required for the work.of the various trades,
and the OWNER'S REPRESENTATIVE shall pass upon them with reasonable
promptness, making desired corrections. The CONTRACTOR shall make any
corrections required by the OWNER'S REPRESENTATIVE,file with him corrected
copies and furnish such other copies as may be needed. The OWNER'S
REPRESENTATIVE'S approval of such drawings or schedules shall not relieve the
,;.. CONTRACTOR from responsibility for deviations from drawings or specifications,
unless he has in writing called the OWNER'S REPRESENTATIVE'S attention to
such deviations at the time of submission,nor shall it relieve him from responsibility
for errors of any sort in shop drawings or schedules. It shall be the
CONTRACTOR'S responsibility to fully and completely review all shop drawings to
ascertain their effect on his ability to perform the required contract work in
accordance with the plans and specifications and within the contract time.
Such review by the OWNER'S REPRESENTATIVE shall be for the sole purpose of
determining the sufficiency of said drawings or schedules to result in finished
improvements in conformity with the plans and specifications, and shall not relieve
the CONTRACTOR of his duty as an independent contractor as previously set forth,
it being expressly understood and agreed that the OWNER'S REPRESENTATIVE
} does not assume any duty to pass upon the propriety or adequacy of such drawings or
schedules, or any means or methods reflected thereby, in relation to the safety of
either person or property during CONTRACTOR'S performance hereunder.
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7. TIME: COMPLETION DATES,EXTENSIONS, DELAYS.
7.01 The date of beginning and the date for final completion of work as specified in this
Agreement are essential conditions of this Agreement.
7.02 The work will commence within ten(10)calendar days of the date specified in the t
notice to proceed or work order, whichever is applicable, and will be completed
within three hundred sixty (360) calendar days from the date specified in the
notice to proceed unless a different amount of time is authorized in writing by the t
OWNER. In the event of any dispute, the records of the OWNER shall be
conclusive evidence as to the date specified on the notice to proceed.
7.03 EXTENSIONS.
7.03.01 The CONTRACTOR has submitted its bid in full recognition of the
time required for the completion of this project taking into
consideration all factors, including, but not limited to, the average
climatic range and industry conditions.
7.03.02 The CONTRACTOR has considered the liquidated damage
provision, and understands and agrees that it shall not be entitled to,
nor will it request an extension of time for final completion under this
Agreement,except if the work has been delayed by an act or neglect
• of the other contractors, if any, employed by the OWNER or by
changes ordered in the work, or reductions thereto in writing.
7.03.03 Within seven (7) calendar days of any act or incident that the
CONTRACTOR reasonably believes may justify an extension of time
for final completion,the CONTRACTOR may apply in writing for an
extension of such time, submitting therewith all written justification
as may be required by OWNER. Thereafter, the OWNER'S
REPRESENTATIVE,within seven(7)calendar days after receipt of
a written request for an extension of time from the CONTRACTOR,
which is supported by all requested documentation, shall then
authorize or deny such written request;provided that the request for
an extension is not based upon weather conditions. Should an
extension be requested within the seven (7) calendar-day period
based upon weather conditions,the OWNER'S REPRESENTATIVE
shall authorize or deny such a written request upon Final Completion
of the Work based upon any variation from the average climatic
range.
7.04 DELAYS.
7.04.01 The CONTRACTOR in undertakingto complete the w 'p e work within the
time herein fixed,has taken into consideration and made allowance
for all hindrances and delays incident to such work,whether growing
out of delays in securing material or workmen or weather or .
otherwise.
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7.04.02 No charge whatsoever shall be made by the CONTRACTOR for
hindrances or delays from any cause whatever, except where the
work is stopped by order of the OWNER,during the progress of any
portion of the work contemplated by the specifications, but the
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the completion of the work, provided the OWNER is satisfied that
such delays or hindrances were due to the extraordinary causes or to
vJ the acts of omission or commission by the OWNER.
_W 7.04.03 It is agreed that the granting of such extensions of time shall in no
instance exceed the time actually lost by the CONTRACTOR for
reason of such causes,provided that the CONTRACTOR shall give
_Y OWNER immediate notice in writing of the cause of the detention or
delay.
Y 7.04.04 In case the work is stopped by an act of the OWNER, then the
expenses of the same, as determined by the OVAINER'S
... REPRESENTATIVE, shall be paid by the OWNER to the
CONTRACTOR.
7.05 FINAL COMPLETION. The CONTRACTOR shall notify the OWNER'S
a REPRESENTATIVE and OWNER when the CONTRACTOR believes that the work
is finally* completed as defined in section 1.06 herein. If the OWNER'S
REPRESENTATIVE accepts the project as finally completed,the CONTRACTOR
shall be so notified and a certificate of final completion,as provided herein,shall be
issued. Thereafter, the OWNER shall pay the balance due, if any and less any
retainage, which shall be held for a period of thirty (30) calendar days after final
completion. At the expiration of the thirty(30)calendar day period,the OWNER'S
REPRESENTATIVE may release any unclaimed retainage.
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8. PAYMENT.
8.01 PAYMENT AMOUNT. The CONTRACTOR agrees to perform the work for all of
the work under this Agreement and the OWNER agrees to pay the CONTRACTOR
based upon the lump sum prices enumerated in the CONTRACTOR'S Invitation to
Bid for the completed and accepted work as set forth and adjusted in accordance with
the terms of this Agreement.
8.02 PROCEDURE FOR PROGRESS PAYMENTS. The Contractor shall submit
applications to the Owner's Representative for progress payments as provided for
herein no more often than once a month Application for payment will be processed
_ by the OWNER'S REPRESENTATIVE. Progress payments may be made by the
OWNER in accordance with the schedule of values submitted by the
CONTRACTOR and approved by the OWNER'S REPRESENATIVE and the
OWNER.
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8.02.01 Subject to the terms of this paragraph and the other provision of this
Agreement, the OWNER shall make progress payment based upon
the agreed schedule of values,and the CONTRACTOR's application
for payment as approved by the OWNER'S REPRESENTATIVE.
Whenever the CONTRACTOR's application for payment includes
payment for work that is determined to be either (1) not in
accordance with this Agreement,the work write-up,specifications,or
other Contract Documents,or(2)defective,the OWNER may,in his
sole discretion,withhold progress payments whenever some work for
which payment has already been made under a prior progress
payment or a portion thereof, is determined to be either (1) not in
accordance with the Agreement,the work write-up,specifications or
other Contract Documents or(2)defective.
8.02.02 No partial payment shall be made for materials or equipment stored
on-site or off-site unless approved in writing in advance by the
OWNER's Director of Engineering. Should partial payments be
approved as provided for herein,such partial payment for materials or
equipment stored on-site or off-site shall be subject to the following
conditions:
➢ Payment will not be made for any materials or equipment
unless the material or equipment becomes a permanent part of
the Work and has a value of more than$25,000.
No payment will be made for living or perishable plant
material, or for degradable materials until they are
incorporated into the Work.
➢ Payment for the materials or equipment stored shall not
exceed ninety percent (90%) of the invoice cost of the
materials or equipment upon proof that the invoice has been
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paid by the CONTRACTOR. The amount paid shall not
exceed the total amount of the Bid item less an amount
estimated for installation.
➢ The CONTRACTOR shall provide all documentation
necessary to establish the cost of and payment for the
materials.
➢ The CONTRACTOR shall store the materials in a manner
approved by the OWNER'S REPRESENTATIVE. The
CONTRACTOR shall exercise all measures necessary to
ensure preservation of the quality, quantity, and fitness of
such materials and shall perform the manufacturers
recommended maintenance of the materials and equipment.
The CONTRACTOR shall inspect the materials and
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equipment, and submit a monthly written report to the
OWNER'S REPRESENATIVE listing all the equipment
; stored, results of its inspection, and the maintenance
performed. .
➢ The CONTRACTOR shall provide all additional insurance
necessary to insure the materials or equipment against loss,
theft or damage.
➢ The CONTRACTOR shall be responsible for any damage to,
defects therein,misfabrication thereof,or loss of the materials
or equipment.
➢ The CONTRACTOR shall be responsible for any resulting
project delays or consequential damages as if the
CONTRACTOR were the owner of the material or equipment
until it is incorporated in the Work and accepted by the
OWNER.
➢ The CONTRACTOR shall absorb any and all cost incurred to
meet the requirements of this article without modification in
the Contract amount.
j ➢ For material or equipment stored off site,the same must be
■ stored in a bonded-warehouse within the incorporated
limits of the City of Baytown or within 20 miles
^ therefrom, which warehouse has been approved by
the OWNER'S REPRESENTATIVE and
■ accessible to the OWNER and the OWNER'S
REPRESENTATIVE at all reasonable times for
inspection.
8.02.03 Subject to the terms of this paragraph and the other provision of this
Agreement, progress payments will be made, less the normal
retainage specified below and additional amounts as the OWNER'S
REPRESENTATIVE and/or OWNER may determine and may
withhold in accordance with this Agreement.
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8.02.04 The OWNER'S REPRESENTATIVE and/or OWNER may, at any
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time,suspend progress payments on the work if,in the sole discretion
of the OWNER'S REPRESENTATIVE and/or OWNER, it
determines that the projected liquidated damages may exceed the
retainage.
8.02.05 The OWNER'S REPRESENTATIVE and/or OWNER may, at any
time, suspend progress payment if it believes that the
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CONTRACTOR will not complete the work due to actual default or
that the CONTRACTOR has represented or done some act that
indicates that the CONTRACTOR will not complete the work within
the dates specified in this Agreement for final collection or that it will
otherwise not complete the work in accordance with this Agreement.
8.03 RETAINAGE. From each approved statement,the OWNER shall retain until final
payment five percent(5%)if the total Contract Price at time of Contract execution is
FOUR HUNDRED THOUSAND AND NO/100 DOLLARS($400,000.00)or more
or ten percent(10%)if the total Contract Price at time of Contract execution is less
than FOUR HUNDRED THOUSAND AND NO/100 DOLLARS ($400,000.00).
The OWNER may also retain from each approved statement any sums authorized
under other terms of this Agreement.
8.04 FINAL PAYMENT. After final completion and acceptance of the work specified in
the plans and specifications, the OWNER shall pay the CONTRACTOR in
accordance with Section 7.05 the remainder of the price due under this Agreement
less any sums withheld under other terms of this Agreement.
8.05 REDUCTION IN SCOPE OR QUANTITY. Reduction in the scope or quantity of
work on lump sum items shall cause the lump sum to be reduced equitably as
determined by the OWNER'S REPRESENTATIVE. The CONTRACTOR shall
never be entitled to anticipated or lost profits on the deleted or reduced portion of a
job whether bid on a unit price or lump sum basis.
8.06 OTHER CHARGES. The CONTRACTOR shall have the sole obligation to pay any
and all charges and fees and give all notices necessary to and incidental to the lawful
prosecution of the work hereunder. The CONTRACTOR shall not,and shall have no
authority whatsoever to, obligate the OWNER to make any payments to another
party or make any promises or representations of any nature on behalf of the
OWNER, without their specific written approval.
8.07 CHANGES AND ALTERATIONS.
- 8.07.01 No changes shall be made and no bills for changes, alterations,
modifications, deviations, and extra orders shall be recognized or j
paid for except upon a written change order from the OWNER or the
OWNER'S REPRESENTATIVE.
8.07.02 The
CONTRACTOR further agrees that either before or after the
beginning of the work, the OVVNER, acting solely through the
OWNER'S REPRESENTATIVE, may make such changes and
alterations as OWNER'S REPRESENTATIVE and/or OWNER sees
fit in the dimensions, plans or materials, or any part thereof, for the
work contemplated under this Agreement without affecting the ti
validity of this Agreement or the accompanying bonds. If such
changes or alterations diminish the quantity of work to be done,they
shall not constitute the basis for any claim for damages or anticipated
_12_ .
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profits on the work that may be dispensed with. The
CONTRACTOR shall never be entitled to anticipated or lost profits
t_
on the deleted or reduced portion of the project whether bid on a unit
or lump sum basis. If such changes increase the amount of work,and
the increased work can be fairly classified under the specifications,
s such increase shall be paid according to the quantity actually done
and at the unit price established for such work under this Agreement;
otherwise, such additional work shall be paid for as provided under
Extra Work. In case the OWNER shall make such changes or
alterations as shall make useless any work already done or material
already furnished or used in said work, then the OWNER shall
recompense the CONTRACTOR for any material or labor so used
and for any actual loss, other than lost profits occasioned by such
change due to actual expenses incurred in preparation for the work as
originally planned.
_ 8.07.03 Changes and alterations that are authorized through change orders
may be made or approved by the OWNER provided that the change
order does not increase or decrease this Agreement by more than the
amount specified in the Ordinance passed by the City Council
approving this contract. Any requests by the CONTRACTOR for a
change in original Payment Amount shall be made prior to the
beginning of the work covered by the proposed change or the right to
payment for Extra Work shall be waived.
8.08 EXTRA WORK CHARGES.
- 8.08.01 The term Extra Work shall be understood to mean and include
work not covered or contemplated by the Contract Documents that
may be required ' by the OWNER or the OWNER'S
- REPRESENTATIVE and approved by the OWNER in writing prior
to its being done by the CONTRACTOR to accomplish any change,
alteration,or addition to the work as shown on the Specifications or
- Contract Documents.
w' 8.08.02 It is agreed that the CONTRACTOR shall perform all Extra g p Work
under the direction of the OWNER'S REPRESENTATIVE when
presented with a written work order signed by the OWNER.
--` 8.08.03 No claim for Extra Work of any kind will be allowed unless,prior to
the work being done,it is ordered in writing by the OWNER. In case
any. orders or instructions appear to the CONTRACTOR to involve
--+ Extra Work for which it should receive additional compensation or an
adjustment in the construction time,the CONTRACTOR shall make
written request to the OWNER for a written order from OWNER
authorizing such Extra Work.
. 8.08.04 It is agreed that the basis of compensation to the CONTRACTOR for
work either added or deleted by a Change Order or for which a claim
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for Extra Work is made shall be determined by one or more of the
following methods:
Method(A) - By agreed unit prices; or
Method(B) - By agreed lump sum; or
Method(C) - If neither Method (A) nor Method (B) is
agreed upon before the Extra Work is
commenced, then the CONTRACTOR shall
be paid the "actual field cost" of the work.
8.08.05 In the event said Extra Work is performed and paid for under Method
(C),then the provisions of this paragraph shall apply and the"actual IF
field cost" is hereby defined to include the cost to the
CONTRACTOR of all applicable workmen, such as foreman,
timekeepers,mechanics and laborers,and materials,supplies,teams,
trucks, rentals on machinery and equipment, for the time actually
employed or used on such Extra Work, plus actual transportation
charges necessarily incurred,together with all power,fuel,lubricants,
water and similar operating expenses, also all necessary incidental
expenses incurred directly on account of such Extra Work,including
social security, old-age benefits and other payroll taxes, and art
rateable proportion of premiums on Performance, Payment, and
Maintenance Bonds, Public Liability and Property Damage and
Workers' Compensation, and all other insurance as may be required.
by any law or ordinance, or directed by the OWNER. The actual
field costs to be paid to the CONTRACTOR shall cover and
compensate the CONTRACTOR for the CONTRACTOR'S profit,
overhead, general superintendence, field office expenses, and all
other elements of costs and expenses not embraced within the actual
field costs as herein defined. Actual field costs shall not exceed the
prevailing market price therefor within reasonable tolerances as
determined by the OWNER'S REPRESENTATIVE.
8.09 INDEBTEDNESS.
IF CONTRACTOR, AT ANY TIME DURING THE TERM OF THIS
AGREEMENT, INCURS A DEBT, AS THE WORD IS DEFINED IN
SECTION 2-662 OF THE CODE OF ORDINANCES OF THE CITY OF
BAYTOWN,IT SHALL IMMEDIATELY NOTIFY THE CITY'S DIRECTOR
OF FINANCE IN WRITING. IF THE CITY'S DIRECTOR OF FINANCE
BECOMES AWARE THAT THE CONTRACTOR HAS INCURRED A DEBT,
THE CITY'S DIRECTOR OF FINANCE SHALL IMMEDIATELY NOTIFY
THE CONTRACTOR IN WRITING. IF THE CONTRACTOR DOES NOT
PAY THE DEBT WITHIN 30 DAYS OF EITHER SUCH NOTIFICATION,
THE CITY'S DIRECTOR OF FINANCE MAY DEDUCT FUNDS IN AN
AMOUNT EQUAL TO THE DEBT FROM ANY PAYMENTS OWED TO
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THE CONTRACTOR UNDER THIS AGREEMENT, AND THE
CONTRACTOR WAIVES ANY RECOURSE THEREFOR.
9. INDEPENDENT CONTRACTOR.
9.01 In all activities or services performed hereunder, the CONTRACTOR is and at all
times shall remain an independent contractor, not an agent or employee of the
OWNER or the OWNER'S REPRESENTATIVE. The CONTRACTOR, as an
independent contractor,shall be solely responsible for the final product contemplated
under this Agreement. Except for materials furnished by the OWNER, the
CONTRACTOR shall supply all materials, equipment and labor required for the
execution of the work on the project. The CONTRACTOR shall have ultimate
control over the execution of the work under this Agreement. The CONTRACTOR
shall have the sole obligation to employ, direct, control, supervise, manage,
discharge and compensate all of its employees and subcontractors and the OWNER
and the OWNER'S REPRESENTATIVE shall have no direct control of or
supervision over the employees of the CONTRACTOR's subcontractors except to
the limited extent provided for in this Agreement.
9.02 The work to be provided on this project shall include the furnishing of all labor,
_ materials, equipment, and other services necessary or reasonably incidental to the
performance of the work by the CONTRACTOR. It shall be the responsibility of the
CONTRACTOR to furnish a completed work product that meets the requirements of
the OWNER. Any additional work,material,or equipment needed to-meet the intent
of this specification shall be supplied by the CONTRACTOR without claim for
additional payment, even though not specifically mentioned herein.
9.03 The CONTRACTOR shall retain personal control and shall give its personal
attention to the faithful prosecution and completion of the work and fulfillment of
--f
this Agreement. The subletting of any portion or feature of the work or materials
required in the performance of this Agreement shall not relieve the CONTRACTOR
from its obligations to the OWNER under this Agreement. The CONTRACTOR
shall appoint and keep on the project during the progress of the work a competent
Project Superintendent-Manager and any necessary assistants, all satisfactory to
OWNER, to act as the CONTR.ACTOR's representative and to supervise its
employees and subcontractors. All directions given to the Project Superintendent-
Manager shall be binding as if given to the CONTRACTOR. Adequate supervision
by competent and reasonable representative of the CONTRACTOR is essential to the
proper performance of the work, and lack of such supervision shall be grounds for
suspending the operations of the CONTRACTOR and is in breach of this Agreement.
9.04 Unless otherwise stipulated, the CONTRACTOR shall provide and pay for all
materials, labor, tools, equipment, transportation, and other facilities necessary for
the performance and completion of the work.
10. DISORDERLY EMPLOYEES.
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The CONTRACTOR agrees to employ only orderly and competent persons, skillful in the
performance of the type of work required under this contract,to do the work. Furthermore,
the CONTRACTOR agrees that whenever the OWNER or the OWNER'S
REPRESENTATIVE shall inform the CONTRACTOR in writing that any person or persons
performing any of the requisite work are, in the opinion of the OWNER or the OWNER'S
REPRESENTATIVE,incompetent,unfaithful or disorderly,such person or persons shall be
discharged and shall not again be employed to perform any work on the project without such
OWNER's or OWNER'S REPRESENTATIVE's prior written consent.
11. NATURE OF THE WORK.
It is understood and agreed that the CONTRACTOR has,by careful examination, satisfied
itself as to the nature and location of the work,the confirmation of the ground and soil,the
nature of any structures,including surface and subsurface utilities,the character,quality and
quantity of the material to be utilized, the character of equipment and facilities needed for
and during the prosecution of the work, the time needed to complete the work,
CONTRACTOR's ability to meet all deadlines and schedules required by this Agreement,
the general and local conditions,and all other matters that in any way affect the work under
this Agreement.
12. PROGRESS OF WORK.
12.01 Unless otherwise specifically provided herein,the CONTRACTOR may prosecute
its work at such time and sessions,in such order of precedence,and in such manner
as shall be most conducive to the economy of the project;provided;however,that the
order and time of prosecution shall be such that the work shall be finally completed
as a whole,in accordance with this Agreement,the Specifications,and other Contract
Documents and within the time of completion designated in the proposals and
schedules agreed upon by the parties.
12.02 Further, the parties shall be subject to the following:
12.02.01 The OWNER reserves the right to enter the property by 'such
employee(s)or agent(s)as it may elect for the purpose of inspecting
the work.
12.02.02 The Project Superintendent/Manager shall coordinate its activities
and work with the OWNER. If required by the Owner, the
CONTRACTOR shall provide a weekly schedule of planned
activities,which may be reviewed on a daily basis. In the case of any
completed work or material that is to be covered over by other
material,the Project Superintendent/Manager shall provide notice to
the OWNER no later than twenty-four (24) hours before the
anticipated cover-up of the previously completed work or material.
In the event, however, that such notice is provided on a Friday the
OWNER will have until the following Monday afternoon to approve
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the previously completed work and its cover-up and the
CONTRACTOR shall take no action until such approval is given by
OWNER.
12.02.03 The CONTRACTOR shall submit,at such time as may reasonably be
requested by OWNER, further schedules that shall list the order in
which the CONTRACTOR proposes to carry on the work with dates
at which the CONTRACTOR will start the several parts of the work
and the estimated dates of completion of the several parts.
12.02.04 The CONTRACTOR shall attend additional meetings called by the
OWNER or the OWNER'S REPRESENTATIVE upon twenty-four
(24)hours' notice unless otherwise agreed by the parties.
12.02.05 when the OWNER is having other work done, by its own force
approved by the OWNER'S REPRESENTATIVE, the OWNER'S
REPRESENTATIVE may direct the time and manner of work done
under this Agreement, so that conflicts will be avoided and the
various work being done by and for the OWNER shall be
coordinated.
13. SITE CONDITIONS AND MANAGEMENT.
13.01 where the CONTRACTOR is working around or in existing structures,it shall verify
conditions at the site,including,but not limited to,roads,easements,door openings,
passages,and other existing site conditions. Any items constructed or manufactured
off-site or outside of buildings shall be done so that they are not too bulky for
existing facilities. The CONTRACTOR shall provide special apparatus as required
to handle any such items. All special handling equipment charges shall be at the
CONTRACTOR'S sole cost and expense.
13.02 It is the intention of the OWNER'S REPRESENTATIVE to show on the plans the
y approximate location of all underground utility lines and structures except service
connections to buildings. To this end, owners of all known underground lines and
structures,including gas,water,electrical cables,telephone cables,sanitary sewers,
storm sewers, industrial pipelines, and appurtenances thereto have been contacted
and the information provided by them is shown on the plans. where gas,water,and
sewer lines exist in the vicinity, the CONTRACTOR shall assume that service
connections exist to each building and exercise appropriate caution during
excavation. It is the CONTRACTOR's responsibility to notify various owners in
advance when excavation is to be done in the vicinity of their underground lines and
structures. Damage to such underground lines and structures,whether or not shown
on the plans,shall be the responsibility of the CONTRACTOR and he shall bear the
cost of necessary repair or replacement of damaged parts.
13.03 Throughout the progress of the work, the CONTRACTOR shall keep the working
area free from debris of all types, and remove from premises all rubbish, resulting
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from any work being done by him. At the completion of the work, the
CONTRACTOR shall leave the premises in a clean and finished condition. Any
failure to do so may be remedied by the OWNER or its designee and charged back to
the CONTRACTOR.
13.04 The CONTRACTOR shall be responsible for verifying all conditions at the site prior
to performing the work. As such,the CONTRACTOR understands and agrees that
it shall be responsible for conditions encountered at the site, including, but not
limited to:
a. subsurface or otherwise concealed physical conditions which differ from those
indicated in the Contract Documents, and
b. unknown physical conditions,which differ from those ordinarily found to exist
and generally recognized as inherent in construction activities of the character
provided for in the Contract Documents.
No additional compensation shall be afforded to the CONTRACTOR for differing
site conditions. Any information provided by the OV*TNER, including, but not
limited to geotechnical information,shall be for the CONTRACTOR's convenience
only and the OWNER does not guarantee the accuracy or correctness of any
information so provided.
14. LAYOUT OF WORK.
Except as specifically provided herein the CONTRACTOR shall la out all work in a
P p yp � y
manner acceptable to the OWNER in accordance with applicable codes and ordinances of
the city, county and state. The OWNER'S REPRESENTATIVE will review the
CONTRACTOR'S layout of all structures and any other layout work done by the
CONTRACTOR,but this review does not relieve the CONTRACTOR of the responsibility
of accurately locating all work in accordance with the specifications and Contract
Documents.
15. CONTRACTORS STRUCTURES.
15.01 Whenever the CONTRACTOR erects, installs, or uses additional structures on the
property for the storage, maintenance of materials or use of employees and
subcontractors,such structure shall not damage the property and the CONTRACTOR
shall maintain'sanitary conditions in and about such structures at all times in a
manner satisfactory to the OWNER.
15.02 The CONTRACTOR shall provide and maintain necessary sanitary conveniences for
the use of laborers on the work. Such conveniences shall be properly secluded from
public observation and shall be in a location approved by the OWNER'S
REPRESENTATIVE.
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15.03 The OWNER may charge the CONTRACTOR for any damage or injury to the
OWNER, its property or third persons as a result of the location or use of any of
CONTRACTOR'S structures.
16. MATERIALS.
16.01 Materials or work described in words which when so applied have well-known
technical or trade meaningshall be held to refer to such recognized standards. All
�
work shall be done and all materials furnished in strict conformity with the Contract
Documents and recognized industry standards.
16.02 Materials and supplies utilized in the final product that will be turned over to the
OWNER shall be new and of good quality. Upon request,the CONTRACTOR shall
' supply proof of quality and manufacturer.
16.03 No refurbished,reconditioned or other previously utilized materials or supplies will
be used without the signed authorization of OWNER.
16.04 Where the product is to be turned over to the OWNER, the CONTRACTOR may
utilize substitutes of equal quality and function as provided for in the specifications.
16.05 The OWNER shall have full and final decision over the use of substitute materials
1 and supplies.
17. OBSERVATION, INSPECTIONS, TESTS.
17.01 The OWNER and the OWNER'S REPRESENTATIVE reserve the right to enter the
4 property by such employee(s) or agent(s) as he may elect for the purpose of
inspecting the work. In accordance therewith,the CONTRACTOR shall supply the
OWNER or the OWNER'S REPRESENTATIVE, upon request, with any keys or
information necessary for the OWNER or the OWNER'S REPRESENTATIVE to
have access to the property. The OWNER and the OWNER'S REPRESENTATIVE
shall have the right to enter the property or location of the work for the purpose of
_ performing such collateral work as the OWNER or the OWNER'S
REPRESENTATIVE deems necessary or appropriate.
17.02 The OWNER and the OWNERS REPRESENTATIVE shall have the right, at any
reasonable time, to observe and test the work. The CONTRACTOR shall make
necessary arrangements and provide proper facilities and access for such observation
and testing at any location wherever the work or any part thereof is in preparation or
progress. The CONTRACTOR shall ascertain the scope of any observation that may
be contemplated by the OWNER or the OWNER'S REPRESENTATIVE and shall
give ample notice as to the time each part of the work will be ready for such
observation.
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17.03 The OWNER or the OWNER'S REPRESENTATIVE may reject any work found to
be defective or not in accordance with the Contract Documents, regardless of the
state of its completion or the time or place of its discovery regardless of whether the i
OWNER or the OWNER'S REPRESENTATIVE has previously accepted the work
through oversight or otherwise. Neither observations by the OWNER or the
OWNER'S REPRESENTATIVE nor inspections, tests, or approvals made by the
OWNER or the OWNER'S REPRESENTATIVE,or persons authorized under this
Agreement to make such inspections, tests, or approvals, shall relieve the
CONTRACTOR from its obligation to perform the work in accordance with the
requirements of the Contract Documents.
MM
17.04 The OWNER or the OWNER'S REPRESENTATIVE upon approval of the OWNER
may require the CONTRACTOR to remove,dismantle or uncover work completed.
In the event that the CONTRACTOR has failed to perform the work as required by
the specifications,or drawings,or other Contract Documents,CONTRACTOR shall
assume and pay the costs of repair and restoration of the work required to be
removed, dismantled, or uncovered. In the event that the CONTRACTOR has
performed the work correctly to specifications, OWNER shall assume and pay the
cost of restoration of the construction to the point that the OWNER has required the
work to be uncovered or dismantled.
18. WORK STOPPAGE.
18.01 The OWNER or the OWNER'S REPRESENTATIVE shall have the right to order
the work of the CONTRACTOR or any subcontractor wholly or partially stopped
immediately under any one or more of the following conditions:
18.01.01 the work may be ordered stopped immediately if in the judgment of. .
the OWNER or the OWNER'S REPRESENTATIVE, any of the
materials furnished or the work being done is not in strict accordance
with this Agreement;
18.01.02 the work may be ordered stopped immediately until any objectionable
person or material is removed from the premises; or
18.01.03 the work may be ordered stopped immediately if any portion of the
work is being performed so as to create.a hazardous condition.
18.02 'Such stoppage or suspension shall neither invalidate any of the CONTRACTOR's
performance obligations under this Agreement, including time of performance and
deadlines therefor,nor will extra charge be allowed the CONTRACTOR by reason
of such stoppage or suspension.
.R
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19. REJECTED WORK.
19.01 The OWNER or the OWNER'S REPRESENTATIVE, in its discretion,may reject
any and all work that is found to be defective or deemed not in conformity with this .
Agreement. The OWNER or the OWNER'S REPRESENTATIVE may reject said
work or any portion thereof regardless of the stage of its completion or time or place
of discovery of such errors. Further, the OWNER or the OWNER'S
REPRESENTATIVE may reject said work regardless of whether the OWNER or the
1 OWNER'S REPRESENTATIVE has previously accepted the work through
oversight or otherwise. Neither observations by the OWNER or the OWNER'S
REPRESENTATIVE nor inspections, tests, certificates or approvals made by the
7] OWNER or the O)N NER'S REPRESENTATIVE, or persons authorized under this
Agreement to make such inspections,tests,certificates or approvals,shall relieve the
CONTRACTOR from its obligation to perform the work in accordance with the
7 requirements of this Agreement and the other Contract Documents.
19.02 In the event that any work or any part thereof is rejected by the OWNER or the
7 OWNER'S REPRESENTATIVE,the CONTRACTOR shall,at its sole expense and
after receipt of written notice thereof from the OWNER or the OWNER'S
REPRESENTATIVE remove such material and rebuild or otherwise remedy such
J - work so that it.shall be in full compliance with this Agreement and the other Contract
p �'
Documents, as follows:
7 19.02.01 At the may be required
option of the OWNER,the CONTRACTOR
p Y re q
to remedy such work so that it shall be in full compliance with this
Agreement. As soon as possible but not later than seven(7)calendar
days after receipt of notice from the OWNER or the OWNER'S
REPRESENTATIVE or such other period of time specified by the
OWNER'S REPRESENTATIVE in writing, the CONTRACTOR
shall, at its sole expense, replace or repair all rejected work or
materials so as to conform with this Agreement.
19.02.02 If the OWNER or the OWNER'S REPRESENTATIVE in its
discretion deems it inexpedient to correct work damaged or not done
in accordance with this Agreement, an equitable deduction for the
7 Payment Amount may be made by the OWNER.
19.02.03 If the CONTRACTOR does not remove or replace any rejected work
7 within the time specified in Section 19.02.01, then the OWNER or
the OWNER'S REPRESENTATIVE may have the work removed,
replaced or repaired at the CONTRACTOR'S expense.
1
20. SUBCONTRACTORS.
20.01 The CONTRACTOR shall retain personal control and give its personal, utmost
attention to the faithful prosecution and completion of the work and fulfillment of
this Agreement. The subletting of any portion or feature of the work or materials
_21_
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required in the performance of this Agreement shall not relieve the CONTRACTOR
from its obligations to the OWNER under this Agreement.
20.02 All subcontractors must be approved by the OWNER'S REPRESENTATIVE prior
to performing any work on the Project.
20.03 If the OWNER'S REPRESENTATIVE judges any subcontractor to be failing to
perform the work in strict accordance with the drawings and specifications, the
CONTRACTOR shall discharge the same, but this shall in no way release the
CONTRACTOR from its obligations and responsibility under this Agreement.
20.04 Every subcontractor shall be bound by the terms and provisions of this Agreement as
far as applicable to its work.
20.05 The CONTRACTOR shall be fully responsible to the OWNER and the OWNER'S
REPRESENTATIVE for the acts and omissions of its subcontractors.
20.06 Nothing contained herein shall create relations between any subcontractor and the
OWNER or the OWNER'S REPRESENTATIVE.
20.07 RESPONSIBILITY FOR PAYMENT OF SUBCONTRACTORS. The
CONTRACTOR shall be solely and exclusively responsible for compensating any of
the CONTRACTOR'S employees,subcontractors,materialmen and/or suppliers of ,
any type or nature whatsoever. The CONTRACTOR shall further be exclusively
responsible for ensuring that no claims or liens .of any type are filed against any L
property owned by the OWNER arising out of or incidental to the performance of
any services performed pursuant to this Agreement.' In the event a statutory lien
notice is sent to the OWNER or the OWNER'S REPRESENTATIVE, the -
CONTRACTOR shall,where no payment bond covers the work,upon written notice
from the OWNER or the OWNER'S REPRESENTATIVE,immediately obtain bond
at the CONTRACTOR'S sole expense and hold the OWNER harmless from any
losses that may result from the filing or enforcement of any said lien notice. In the
event that the CONTRACTOR defaults in the provision of the bond, the OWNER
may withhold such funds as are necessary to ensure the payment of such claim until
litigation determines to whom payment shall be made.
21. POSSESSION AND USE OF COMPLETED PORTIONS.
The OWNER shall have the right to take possession of and use any completed or partially
completed portions of the work,notwithstanding the time for completing the entire work or u.
such portions may not have expired,but such taking possession and use shall not be deemed
an acceptance of any work not completed in accordance with the Contract Documents.
22. PERMITS AND CERTIFICATES. -
The CONTRACTOR shall secure and a for all necessary permits, licenses and/or .
. pay rY
certificates issued by the state,municipality or other authorities and submit the same to the '-y
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OWNER'S REPRESENTATIVE. The OWNER may withhold any payments due under this
Agreement or that may become due under this Agreement until the necessary permits,
licenses and/or certificates are procured and delivered. The CONTRACTOR will not,
however, be required to pay for any.permit fees for permits to be issued by the City of
Baytown, which will be waived in conjunction with this Agreement.
a
23. FAULTY WORKMANSHIP.
Neither the final payment nor any acceptance nor certificate nor any provision of this
Agreement shall relieve the CONTRACTOR of any responsibility for faulty workmanship or
materials. At the option of the OWNER, as provided in this Agreement, the
CONTRACTOR shall remedy any defects thereto and pay for any damage to other work
resulting therefrom, which may appear after final acceptance of the work.
24. WARRANTY.
Upon acceptance of the work by the OWNER,the CONTRACTOR warrants for a period of
one (1) calendar year from the date thereof as follows:
24.01 The CONTRACTOR warrants to the OWNER that(i) all materials provided to the
OVINER under this Agreement shall be new unless otherwise approved in writing by
the OWNER'S REPRESENTATIVE,.(ii) all materials installed shall be free from
asbestos containing material,and(iii)all materials and work will be of good quality,
free from faults and defects, and in conformance with this Agreement.
s
24.02 All work not conforming to these requirements, including, but not limited to,
substitutions not properly approved and authorized,may be considered defective.
f
24.03 This warranty is in addition to any rights or warranties expressed or implied by law
and consumer protection claims arising from misrepresentations by the
CONTRACTOR.
24.04 Where more than a one(1)year warranty is specified for individual products,work
or materials,the longer warranty shall govern.
24.05 This warranty obligation shall be covered by any performance, payment, or
maintenance bonds tendered in compliance with this Agreement.
25. DEFECTIVE WORK DISCOVERED DURING WARRANTY PERIOD.
If within one (1) calendar year after the date of acceptance by the OWNER of designated
equipment or within such longer period of time as may be prescribed by law or by the terms
of any applicable special warranty required by this Agreement, any of the work is found or
determined to be defective, including obvious defects, or otherwise not in accordance with
this Agreement, the Contractor shall correct it PROMPTLY.
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25.01 After receipt of written notice from the OWNER to begin corrective work, the
CONTRACTOR shall promptly begin the corrective work. This obligation shall
survive the termination of this Agreement. The guarantee shall not constitute the
exclusive remedy of the OWNER, nor.shall other remedies be limited to either
warranty or guarantee period.
25.02 If within seven(7)calendar days after the OWNER has notified the CONTRACTOR
of a defect,failure or abnormality in the work,the CONTRACTOR has not started to
4
make the necessary corrections or adjustments,the OWNER is hereby authorized to
make the corrections or adjustments,or to order the work to be done by a third party.
The cost of the work shall be paid by the CONTRACTOR.
25.03 The cost of all materials, parts, labor, transportation, supervision, special
instruments, and supplies required for replacement or repair of parts and for
correction'of defects, shall be paid by the CONTRACTOR or by the surety.
25.04 The one (1) calendar year warranty shall cover all work, equipment, and materials
that are part of this project, whether or not a warranty is specified in the individual
. section prescribing that particular aspect of the work.
26. LIQUIDATED DAMAGES.
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26.01 It is expressly understood and agreed by the parties that time is of the essence to this
Agreement and that the date set for the final completion of the work described herein
is an essential condition of this Agreement. It is further understood and agreed that
the date for final completion of the work is reasonable dates for the completion of the
project, taking into consideration all conditions, including, but not limited to, the
average climatic change and conditions and usual industrial conditions prevailing in
this locality.
26.02 If the CONTRACTOR should neglect,fail,or refuse to complete the work required-
for final completion within the date specified in this Agreement, or any proper
extension that is granted in writing by the OWNER,then the CONTRACTOR hereby
agrees, as a part of the consideration for the awarding of this Agreement, that the
OWNER may withhold permanently from the CONTRACTOR's total Payment
Amount the sum of ONE THOUSAND AND NO/100 DOLLARS ($1,000.00) for
each and every calendar day that the CONTRACTOR is in default after the date
stipulated for final completion, not as a penalty, but as liquidated damages for the
breach of the Agreement.
26.03 The amount of liquidated damages for the CONTRACTOR's failure to meet the
deadline for final completion is fixed and agreed on by the CONTRACTOR because
of the impracticability and extreme difficulty in fixing and ascertaining actual
damages that the OWNER would in such an event sustain. The amounts to be
charged are agreed to be the damages that the OWNER would sustain and may,at the
option of the OWNER, be retained from either current progress payment or from
final payment.
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27. WITHHOLD PAYMENT AND CONTRACTOR'S PAYMENT.
27.01 Regardless of any bond, the OWNER'S REPRESENTATIVE may, on account of
subsequently discovered evidence,withhold payment or nullify the whole or part of
any acceptance or certificate to such extent as may be necessary to protect the
s
OWNER from loss on account of.
1. Defective work or work that is not in strict accordance with the terms of this
Agreement, the Specifications, or the other Contract Documents;
2. Claims filed or reasonable evidence indicating probable filing of claims, as
determined at the sole discretion of the OWNER;
3. Failure of the CONTRACTOR to make prompt payments to subcontractors
or for material or labor or materialmen;
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4. Claims filed or reasonable evidence, as determined at the sole discretion of
the OWNER, of damage to another contractor or a third party, including
Li adjacent property owners; .
5. Reasonable doubt,as determined at the sole discretion of the OWNER,that
I the work can be completed for the unpaid balance of the contract amount;
s 6. Reasonable indication, as determined at the sole discretion of the OV6lNER,
that the work will not be completed within the contract time;
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7. Liquidated damages and administrative charges, as determined by the
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OWNER at its sole discretion;
8. Charges made for repairs to the CONTRACTOR'S defective work or repairs
made by the OWNER to correct damage to other property;
9. Claims fled or reasonable evidence as determined at the sole discretion of
the OWNER indicating unremedied damage to property owned by the
OWNER; or
10. Other amounts authorized under this Agreement.
27.02 whenever the CONTRACTOR and/or its surety is required to make a payment under
' this Contract, it is expressly understood and agreed that such payment shall be due
within 15 days after receipt of an invoice therefore unless expressly stated otherwise.
Payments required by CONTRACTOR and/or its surety,which are not timely made,
shall accrue interest at a rate of one percent per month.
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28. CHARGES FOR INJURY OR REPAIR.
28.01 The CONTRACTOR shall be liable and responsible for any damages incurred or
repairs made necessary by reason of its work and/or caused by it. Repairs of any
kind required by the OWNER or the OWNER'S REPRESENTATIVE will be made
and charged to the CONTRACTOR by the OWNER.
28.02 The CONTRACTOR shall take the necessary precautions to protect any areas
adjacent to its work.
28.03 The work specified consists of all work,materials and labor required by the OWNER
or the OWNER'S REPRESENTATIVE to repair any damage to the property of the
OWNER, including, but not limited to, structures, roadways, curbs, parking areas
and sidewalks, to an equal or better condition than before such property was
damaged.
28.04 The CONTRACTOR shall at all times exercise reasonable precautions for the safety '
of employees and others on or near the work and shall comply with all applicable
provisions of Federal,State,and Municipal safety laws and building and construction
codes. All machinery and equipment and other physical hazards shall be guarded in
accordance with the "Manual of Accident Prevention in Construction" of the
Associated General Contractors of America except where incompatible with Federal,
State, or Municipal laws or regulations. The CONTRACTOR. shall provide such
• machinery guards, safe walkways, ladders, bridges, gangplanks, and other safety
devices. The safety precautions actually taken and their adequacy shall be the sole
responsibility of the CONTRACTOR, acting at his discretion as an independent
contractor.
29. PAYMENT OF EMPLOYEES AND FOR MATERIALS.
29.01 Wage rates paid on this project shall not be less than specified in the schedule of )
general prevailing rates of per diem rates attached hereto as Exhibit "A" and
incorporated herein for all intents and purposes. Should the CONTRACTOR or any
of its subcontractors fail to pay the general prevailing rate to a worker performing MR
work on the project, the CONTRACTOR shall pay to the OWNER SIXTY AND
NO/100 DOLLARS($60.00)for each worker employed for each calendar day or part
of the day that the worker is paid less than the wage rates stipulated in this Contract.
29.02 The CONTRACTOR and each of the subcontractors shall pay each of its employees
engaged in work on the project under this Agreement in full (less mandatory legal
deductions),in cash or by check readily cashable,without discount,no less than once
every two (2)weeks.
29.03 The OWNER or OWNER'S REPRESENTATIVE shall,prior to final acceptance of
the project,require the CONTRACTOR to execute an affidavit in legal form stating
that all bills for labor,materials, and incidentals incurred have been paid in full and
that there are no claims pending of which the CONTRACTOR has been notified.
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30. INSURANCE.
30.01 Throughout the term of this Agreement,the CONTRACTOR at its own expense shall
L ► purchase,maintain and keep in force and effect insurance against claims for injuries
to or death of persons or damages to property which may arise out of or result from
i MIT the CONTRACTOR'S operations and/or performance of the work under this
Agreement,whether such operations and/or performance be by the CONTRACTOR,
its agents, representatives, volunteers, employees or subcontractors or by anyone
directly or indirectly employed by any of them, or by anyone for whose acts any of
them may be liable.
30.02 The CONTRACTOR's insurance coverage shall be primary insurance with respect to
the OWNER and its officers,agents and employees. Any insurance or self-insurance
maintained by the OWNER,its officers,agents and employees shall be considered in
excess of the CONTRACTOR's insurance and shall not contribute to it. Further,the
r CONTRACTOR shall include all subcontractors as additional insureds under its
policies or shall furnish separate certificates and endorsements for each
subcontractor. All coverage's for subcontractors shall be subject to all of the
requirements stated herein.
30.03 The following is a list of standard insurance policies along with their respective
minimum coverage amounts required in this contract:
(1) Workers' Compensation Policy
■ Statutory amounts required by Texas law.
■ Employer's Liability: $500,000
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(2) Commercial General Liability Policy
■ General aggregate of$2,000,000
■ Owners' and Contractors' Protective Liability of$500,000
' ■Products and Completed Operations of$1,000,000
�1
■ Personal and Advertising Injury of$1,000,000
■ Minimum of$1,000,000 per occurrence
7 ■ Coverage shall be at least as broad as ISO CG 00 02 12 07.
■ No coverage exclusions shall be deleted from standard policy
without notification of individual exclusions being attached for
7 review and acceptance.
(3) Automobile Liability Policy
7(1 ■ Combined single limits of$1,000,000
■ Coverage for"Any Auto."
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(4) Builder's Risk
■ Limit: 100% of replacement value.
■ City of Baytown will be named loss-payee.
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(5) Installation Floater
■ 100% of insurable value of the equipment installed.
■ City of Baytown will be named loss-payee.
30.04 Prior to or upon the execution of this Agreement and before commencing any of the
work, CONTRACTOR shall file with the OWNER valid Certificates of Insurance
and endorsements acceptable to the OWNER. Such Certificates shall contain a
provision that coverages afforded under the policies will not be canceled,suspended,
voided,or reduced until at least thirty(30)days'prior written notice has been given
to the OWNER via certified mail,return receipt requested. Prior to the end of each
coverage period during the term of this Agreement, new Certificates of Insurance
must be filed with the OWNER evidencing continuation of coverage.
The CONTRACTOR shall also file with the OWNER valid Certificates of Insurance
covering all Subcontractors. The OWNER reserves the right to reject any bid that
does not meet the minimum insurance requirements as outlined above.
30.05 The following are general requirements, which are applicable to all policies:
30.05.01 All insurance coverage required herein, except for Workers'
Compensation Insurance,.shall be written by a carrier with an A.M.
Best Rating of B+or higher in accordance with the current Best Key
Rating Guide.
30.05.02 Only Insurance Carriers licensed and admitted to do business in the
State of Texas will be accepted. .
30.05.03 Deductibles shall be listed on the Certificate of Insurance and are
acceptable only on a per occurrence basis.
3 0.05.04 Claims-made policies will not be accepted.
30.05.05 The OWNER, its officers, agents and employees are to be added as
"Additional Insureds" to all liability policies. The coverage shall
contain no special'limitation on the scope of protection afforded to
the OWNER, its officers, agents and employees.
30.05.06 A waiver.of subrogation in favor of the OWNER with respect to
Workers' Compensation Insurance must be included.
30.05.07 Upon request, certified copies of all insurance policies and/or
certificates of insurance shall be furnished to the OWNER at no cost
to the OWNER.
30.06 Certificates of Insurance shall be prepared and executed by the insurance company or
its authorized agent, and shall contain the following provisions and warranties:
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30.06.01 All endorsements and insurance coverages according to requirements
and instructions contained herein.
30.06.02 The form of the notice of cancellation, termination, or change in
coverage provisions to the OWNER'S REPRESENTATIVE.
30.06.03 Original endorsements affecting coverage required by this Section 30
shall be furnished with the certificates of insurance.
30.06.04 Upon request of and without cost to the OWNER or the OWNER'S
REPRESENTATIVE, insurance policies shall be furnished to
OWNER.
30.06.05 Upon request of and without cost to the OWNER,loss runs(Claims
L listing) of any and/or all insurance coverages shall be furnished to
OWNER.
30.07 The CONTRACTOR shall comply with Section 110.110 of Title 28 of the Texas
Administrative Code,which is incorporated herein as Exhibit"B" for all intents and
purposes. In addition thereto,the contractor shall perform and maintain compliance
with all provisions of Texas Worker's Compensation Commission Rules, Rule
110.110,(c)(2). However,it is expressly understood and agreed that in the event of
a conflict between the provisions of this Section 30 and the provision contained in
l Exhibit"B "the more stringent shall control.
31. PERFORMANCE,PAYMENT AND MAINTENANCE BONDS.
31.01 The CONTRACTOR shall furnish separate performance,payment,and maintenance
bonds,each in the sum of one hundred percent(100%)of the total contract price,in
such forms as the OWNER may approve and with sureties as the OWNER may
Y
approve,for this purpose,guaranteeing faithful performance of the contract,faithful
performance of work during the warranty period and faithful payment to all persons
Y . supplying labor and materials or furnishing any equipment in the execution of the
Agreement. The cost of such bonds shall be included in the CONTRACTOR'S
7 proposed price.
31.02 All performance, payment, and maintenance bonds required herein shall remain in
effect throughout the term of this Agreement and for a period of one(1)year after the
completion of the work and shall be extended for any warrantywork to cover the
warranty period.
7 31.03 If at any time during the execution of this Agreement or in the required period
thereafter, the bond or bonds become invalid or ineffective for any reason, the
CONTRACTOR shall promptly supply within ten (10) days such other bond or
t bonds,which bond or bonds shall assure performance or payment as required. Such
replacement bond(s) shall be issued by a surety acceptable to the OWNER.
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31.04 The CONTRACTOR shall make such changes and alterations as the OWNER may
see fit in the work herein contemplated, or any part thereof without affecting the
validity of this Agreement and any work accompanying bond. If such changes or
alterations diminish the quantity of the work to be done,they shall not constitute the
basis for any claim for damages or anticipated profits on the work that may be
dispensed with. In case that the OWNER makes changes or alterations as shall make t
useless any work already done or material already used in said work, then the
OWNER shall recompense the CONTRACTOR for any material or labor so used and
for any actual loss occasioned by such change due to actual expenses incurred in
preparation for the work as originally planned.
32. PROJECT UNDER CONTRACTOR'S CONTROL.
Any injury or damage caused to the CONTRACTOR or the project prior to and including the
date of final completion caused by an act of God,natural cause,a party or entity not privy to
this Agreement,or other force maj eure shall be assumed and borne by the CONTRACTOR.
33. COMPLIANCE WITH LAW.
33.01 The CONTRACTOR'S work and materials-shall comply with all state and federal
laws, municipal ordinances, regulations and direction of inspectors appointed by
• proper authorities having jurisdiction including,without limitation, the following:
3 3.01.01 The CONTRACTOR shall perform and require all subcontractors to
perform the work in accordance with applicable laws, codes,
ordinances, and regulations of the State of Texas and the United
States and in compliance with OSHA and other laws as they may -
apply. In the event any of the conditions of the specifications violate
the code for any industry,then such code conditions shall prevail.
33.01.02 The CONTRACTOR shall follow all applicable state and federal
laws, municipal ordinances and guidelines concerning soil erosion
and sediment control throughout the project and warranty period. }
3 3.01.03 The CONTRACTOR agrees to abide by all federal, state or local
regulations relative to equal opportunity to all persons, without
discrimination as to race, color, creed,religion,national origin, sex,
marital status, age and status with regard to public assistance or
disability.
33.02 If the CONTRACTOR observes that the plans and specifications are at variance with
applicable laws,rules and/or regulations,the CONTRACTOR shall promptly notify
the OWNER'S REPRESENTATIVE in writing. If the CONTRACTOR performs
any work knowing it to be contrary to such laws,rules and regulations and without
notice to the OWNER'S REPRESENTATIVE, the CONTRACTOR shall bear all
costs arising therefrom.
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7: 34. SAFETY PRECAUTIONS.
34.01 Safety precautions at the site are a part of the construction techniques and processes
for which the CONTRACTOR shall be solely responsible. The CONTRACTOR is
p
solely responsible for handling and use of hazardous materials or waste, and
informing employees of any such hazardous materials or waste.
34.02 The CONTRACTOR has the sole obligation to protect or warn any individual of
potential hazards created by the performance of the work set forth herein. The
CONTRACTOR shall,at its own expense,take such precautionary measures for the
protection of persons,property and the work as may be necessary.
34.03 The safety of the public and convenience of traffic shall be regarded as prime
importance during construction.
1 34.03.01 During normal construction,the CONTRACTOR shall not hinder or
inconvenience travel of streets or intersecting alleys for.more than
two blocks at any one time. The CONTRACTOR shall use warning
signs as necessary to adequately protect the traffic. If the OWNER or
other appropriate entity approves a street closure, the
CONTRACTOR shall furnish and maintain at each end of the closed
r
• section, at all intersecting streets within the section, and in all
intersecting streets at a distance of one block on each side of the
work,properly worded signs and barricades announcing the closure
to the public. The CONTRACTOR shall not be allowed to start any
operation that will close a street or streets until the required
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barricades are in place. Barricades and warning signs shall meet the
4 specifications as shown in the plans and/or specifications. Warning
1 li
`V lights shall be kept burning from sunset to sunrise. When a street is
to be closed, the CONTRACTOR must. notify the OWNER'S
Engineering and Public Works Departments 48 hours in advance of
the closure.
34.03.02 The CONTRACTOR shall remove, as soon as practicable,
accumulated rubbish surplus dirt etc. from the construction site,
>
thereby opening each block for public use. Use by the public,
however, of any portion of a street where work has been done, shall
not constitute in itself acceptance of the work'done therein. Backfill
and shape trenches across street intersections or driveways to permit
safe usage at night. If trenches must be left open for any length of
time,the CONTRACTOR shall span with wooden mats or bridges to
permit traffic flow and prevent injury to the public. When driveways
7 are cut,the OWNER may direct the immediate placement of mats for
ingress and egress of vehicles if, in the OWNER'S
REPRESENTATIVE or OWNER'S opinion, undue hardship to
property owners would otherwise result.
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34.03.03 The CONTRACTOR shall not block ditches,inlets,fire hydrants,etc.
The CONTRACTOR shall provide temporary drainage where
necessary or as directed by the OWNER'S REPRESENTATIVE or
the OWNER.
34.03.04 When persons or equipment are working in streets open to moving
traffic, or if otherwise ordered by the OWNER'S
REPRESENTATIVE,the CONTRACTOR shall furnish flagmen for ?
direction of traffic to protect both the moving traffic and the
contractor's operations. The flagmen shall wear an orange
fluorescent vest over their normal work clothes.
34.04 The CONTRACTOR shall be held responsible for all damages to property,personal
injuries and/or death due to failure to use safety devices of any type or nature that
may be required to protect or warn any individual of potential hazards created by the
performance of the work; and when any property damage is incurred,the damaged
portion shall immediately be replaced or compensated for by the CONTRACTOR at
its own cost and expense.
34.05 The CONTRACTOR shall indemnify,hold harmless,and defend the
OWNER, its officers, agents and employees, including the
OWNER'S REPRESENTATIVE, (hereinafter in this subsection
collectively referred to as"OWNER")from any liability of whatever
Mature caused by the CONTRACTOR'S failure to comply with
applicable federal, state, or local regulations that touch upon or '
concern the maintenance of a safe and protected working
environment and the safe use and oueration of machinery and
equiument in that working environment no matter where fault or
responsibility lies. Such indemnity shall indemnify and protect the
OWNER from the consequences of the OWNER'S own negligence,
when that negligence is the concurring cause of the iniurv, death or
damages and from the consecruences of the CONTRACTOR'Sioint
or sole negligence. It is the expressed intention of the uarties hereto,
both the CONTRACTOR and the OWNER, that the indemnity
provided for in this Paragraph is an indemnity by the
CONTRACTOR to indemnify, protect and defend the OWNER
from the consequences of the OWNER'S own negligence where that
negligence is a concurring cause of the iniurv, death or damage and
from the CONTRACTOR's own negligence where that negligence is `
the sole or concurring cause of the injury, death or damage.
Furthermore, the indemnity provided for in this paragraph shall
have no application to any claim, loss, damage, cause of action, suit
and liability where the iniurv,death or damage results from the sole '
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negligence of the OWNER unmixed with the fault of any other
person or entity.
35. INDEMNITY.
35.01 The CONTRACTOR agrees to and shall indemnify, hold harmless
and defend, the OWNER, its officers, agents and emulovees,
including the OWNER'S REPRESENTATIVE, (hereinafter in this
article 35 and all sections hereunder collectively referred to as
"OWNER"), from and against any and all claims, losses, damages,
causes of action, suits and liability of every kind, including all
expenses of litigation,court costs,,and attorneys'fees for injury to or
death of any person,or for damage to any property,arising out of or
in connection with the work done by the CONTRACTOR under this
Contract., where such injuries., death or damages are caused by the
sole -or joint negligence of the CONTRACTOR or the joint
negligence of the OWNER and any other person or entity. It is the
�J expressed intention of the parties hereto,both the CONTRACTOR
and the OWNER,that the indemnity provided for in this uaragrauh
77
LJ is an indemnity by the CONTRACTOR to indemnify, protect and
defend the OWNER from the'conseauences of the OWNER'S own
negligence.,where that negligence is a concurring cause of the injury.,
death or damage and from the consequences of the
CONTRACTOR'S own negligence,where that negligence is the sole
or concurring cause of the injury, death, or damage. FurthermoLj re,
the indemnity provided for in this paragraph shall have no
application to the OWNER for any claim, loss, damage, cause of
action, suit and liability where the iniurv, death or damage results
from the sole nelience of the OWNER, unmi gg zed with the fault of
any other person or entity.
35.02 The CONTRACTOR shall indemnify, protect and defend the
OWNER from the consequences of the OWNER'S concurrent
negligence in accordance with Section 35.01 for all work done by the
CONTRACTOR.,including,but not limited to,the following specific
instances:
35.02.01 In the event the OWNER is damaged due to the act,
omission, mistake, fault or default of the
CONTRACTOR, then the CONTRACTOR shall
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indemnify and bold the OWNER AND THE OWNER'S
REPRESENTATIVE harmless for such damage.
35.02.02 The CONTRACTOR shall indemnify and hold the
OWNER harmless from any claims of material
suppliers, mechanics,laborers,or other subcontractors.
35.02.03 The CONTRACTOR shall indemnify and hold the i
OWNER harmless from any and all injuries to or
claims of adiacent Property owners caused by the '
CONTRACTOR, its agents, employees and
representatives.
35.02.04 The CONTRACTOR shall be responsible for any
damage to the floors, walls, etc., . caused by the
CONTRACTOR, its agents, emulovees and
representatives or their equipment during installation.
35.02.05 The CONTRACTOR shall also be resuonsible for all
subcontractors hired by it.
35,903 IN THE EVENT THAT ANY ACTION OR PROCEEDING IS
BROUGHT AGAINST THE OWNER BY REASON OF ANY OF
THE INDENIlNITIES PROVIDED FOR HEREIN, INCLUDING,
BUT NOT LIMITED TO, THOSE INCLUDED IN ARTICLES 34,
35 AND 37 OF THIS AGREEMENT, THE CONTRACTOR
FURTHER AGREES AND COVENANTS TO DEFEND THE
ACTION OR PROCEEDING BY LEGAL COUNSEL
ACCEPTABLE TO THE OWNER. �
35.04 The indemnities provided for herein, including, but not limited to,
those contained in articles 34, 35 and 37, will survive the ezuiration
or termination of this Agreement.
36. RELEASE.
By this Agreement, the OWNER does not consent to litigation and expressly revokes any
consent to litigation that it may have granted by the terms of this Agreement,any charter,or
applicable state law. The CONTRACTOR assumes full responsibility for the work to be
performed and releases,relinquishes, and discharges the OWNER, its officers, agents and
employees from all claims,demands and causes of action of every kind and character for any
injury to, including, but not limited to, death of any person (whether third persons, the
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CONTRACTOR, or employees of either of the parties). This release includes the cost of
defense of any claim and any loss of or damage to property(whether property of the parties
or of third parties) that is caused by or alleged to be caused by, arising out of, or in
connection with the CONTRACTOR'S work to be performed under this Agreement whether
or not said claims, demands, and causes of action are covered in whole or in part by
insurance.
j 37. ROYALTIES AND LICENSING FEES.
The CONTRACTOR shall pay all royalties and license fees,and shall provide for the use of
any design, device, material or process covered by letters patent or copyright by suitable
legal agreement with the patentee or owner.The CONTRACTOR warrants that the
products hereby incorporated into the nroiect and/or any product used in
association with the arolect does not infringe upon or violate any patent,
copyright, trade secret or any other proprietary right of any third party;
in the event of any claim by any third party against the OWNER or its
officers, agents, and/or employees, including the OWNER'S
REPRESENTATIVE,(hereinafter in this section collectively referred to as
"OWNER") the OWNER shall notify the CONTRACTOR and the
CONTRACTOR shall defend such claim, in the OWNER'S name, but at
', the CONTRACTOR'S expense, and shall indemnify, hold harmless, and
defend the OWNER from and against any and all claims, damages,losses,
causes of action,suits,and liability of every kind,including,but not limited
to, all expenses of litigation, court cost, and attorneys' fees, for injury,
death, or damage to any third party arising out of or in connection with
the Product(s) used in the performance of this Contract and regardless of
whether such claim by and any resulting iniurv,death,or damage to third
parties is caused in part by the acts and/or omissions of the OWNER. It is
t he expressed intention of the uarties hereto,both the CONTRACTOR and
the OWNER that the indemnity provided for in this Paragraph is an
indemnity by the CONTRACTOR to indemnify, protect and defend the
OWNER (i) from the consequences of the OWNER'S acts and/or
omissions,where the OWNER'S acts and/or omissions are the concurring
cause of the infringement anon or violation of any Patent, couvright,trade
secret, or other proprietary right and any resulting iniurv, death, or
damage of any third Party in connection with the uroducts provided,
incorporated, or used in the uroiect under this Contract and/or (H) from
the consequences of the CONTRACTOR'S acts and/or omissions, where
the CONTRACTOR'S acts and/or omissions are the sole or concurring
cause of the infringement upon or violation of any patent,copvriLyht,trade
_ secret, or other Proprietary right and any resulting iniurv, death, or
�:J damage of any third party in connection with the products provided,
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incorporated,or used in the project under this Contract. Furthermore,the
indemnity provided for in this paragraph shall have no application to the
O"ER for any claim, loss, damage, cause of action, suit, and liability t-
where the infrinizement upon or violation of any patent, copyright, trade
secret or other Proprietary rights and resultin2 iniury, death or dams e
t
results from the sole acts and/or omissions of the OWNER, unmixed with -
the fault of any other person or entity. If the material, design, service,product or
process specified or required by the OWNER'S REPRESENTATIVE is an infringement,the
CONTRACTOR shall be responsible for such loss, unless he promptly gives such
information to the OWNER'S REPRESENTATIVE.
3 8. ABANDONMENT.
38.01 In case the CONTRACTOR should abandon,fail or refuse to resume work within ten
(10) days after written notification from the OWNER or the OWNER'S fin
REPRESENTATIVE, or if the CONTRACTOR fails to comply with the orders of
the OWNER or the OWNER'S REPRESENTATIVE, when such orders are
consistent with the Contract Documents,then, and in that case,where performance
and payment bonds exist,the sureties on these bonds shall be notified in writing and
directed to complete the work, and a copy of said notice shall be delivered to the
CONTRACTOR.
38.02 After receiving said notice of abandonment,the CONTRACTOR shall not remove
from the work any machinery, equipment, tools, materials,.or supplies then on the
job,but the same,together with any materials and equipment under contract for the
work, may be held for use on the work by the OWNER or the surety on the
performance bond, or.another contractor in completion of the work; and the
CONTRACTOR shall not receive any rental or credit therefor, it being understood
that the use of such equipment and materials will ultimately reduce the cost to
complete the work and be reflected in the final settlement.
39. BREACH OF CONTRACT.
The OWNER shall have the right to declare the CONTRACTOR in breach of this
Agreement for cause when the OWNER determines that this Agreement is not being
performed according to its understanding of the intent and meaning of this Agreement. Such
breach shall not in any way invalidate, abrogate, or terminate the CONTRACTOR's
obligation under this Agreement.
40. TERMINATION.
40.01 If this Agreement is terminated for cause,the OWNER shall have the right but shall
not be obligated to complete the work either itself or by others; and to this end,the
OWNER shall be entitled to take possession of and use such equipment and materials
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as may be on the job site and to exercise all rights, options and privileges of the
CONTRACTOR under its subcontracts, purchase orders or otherwise; and the
CONTRACTOR shall promptly assign such rights, options, and privileges to the
OWNER. If the OWNER elects to complete the work itself or by others,pursuant to
the foregoing, then the CONTRACTOR will reimburse the OWNER for all costs
incurred by the OWNERS REPRESENTATIVE, (including, without limitation,
applicable,general and administrative expenses,and field overhead,and the cost of
:v necessary equipment, materials and field labor) in correcting work by the
CONTRACTOR that fails to meet the requirements of the Contact Documents.
40.02 After receipt of a notice of termination, whether with or without cause, the
f` CONTRACTOR shall, in good faith and to the best of its ability, do all things
necessary in light of such notice to assure the efficient and proper close-out of the
terminated work (including, but not limited to, the protection of the OWNER'S
j' property). Among other things the CONTRACTOR shall, except as otherwise
directed or approved by the OWNER, do the following:
(a) Stop the work on the date 'and to the extent specified in the notice of
• termination;
(b) Place no further orders or subcontracts for services a ui ment .or material
except as may be necessary for completion of such portion of the work as is
not terminated;
(c) Immediately terminate all orders and subcontracts to the extent that they
• relate to the performance of the work terminated by the notice of termination;
(d) Assign to the OWNER, in the manner and to the extent directed by it,all of
the right, title and interest of the CONTRACTOR under the orders or
subcontracts so terminated in which case,the OWNER shall have the right to
settle or pay any or all claims arising out of the termination of such orders
and subcontracts;
(e) With the approval of the OWNER, settle all outstanding liabilities and all
claims arising out of such termination, orders and subcontracts;
(f) Deliver to the OWNER, when directed by the OWNER, all documents and
all property, which if the work had been completed, the CONTRACTOR
would have been required to account for or deliver to the OWNER, and
transfer title to such property to the.OWNER to the extent not already
transferred; and/or
f
i
(g) Take actions necessary or as otherwise directed by the OWNER'S
REPRESENTATIVE or the OWNER for the protection and preservation of
the work.
40.03 In the event of such termination,there shall be an equitable reduction of the Payment
Amount to reflect the reduction in the work. Costs incurred after the effective date
-37-
J
i
5 �f`
of the notice of termination shall not be treated as reimbursable costs unless they
relate to carrying out the unterminated portion or taking close-out measures.
41. TERMINATION FOR CAUSE.
41.01 Without prejudice to any other legal or equitable right or remedy that the OWNER
would otherwise possess hereunder or as a matter of law,the OWNER,upon giving
the CONTRACTOR five(5)days'prior written notice,shall be entitled to terminate
this Agreement in its entirety at any time for the following:
41.01.01 If the CONTRACTOR becomes insolvent, commits any act of
bankruptcy,makes a general assignment for the benefit of creditors,
or becomes the subject of any proceeding commenced under any
statute or law for the relief of debtors; 1
41.01.02 If a receiver,trustee,or liquidator of any of the property or income of
the CONTRACTOR shall be appointed;
41.01.03 If the CONTRACTOR shall fail to prosecute the work or any part
thereof with diligence necessary to ensure its progress and
completion as prescribed by the time schedules;
41.01.04 If within five(5) calendar days after written notice thereof from the
OWNER or the OWNER'S REPRESENTATIVE, the
CONTRACTOR shall fail to remedy any defective work or work that
does not conform to the requirements of this Agreement, t
specifications, and other Contact Documents, or any other default
under any of the terms, provisions, conditions, or covenants
contained in this Agreement or any other current agreement between
the CONTRACTOR and another OWNER for similar construction
work on other property; or
J
41.01.05 If the CONTRACTOR shall fail for any reason other than the failure
by the OWNER to make payment called upon when due.
41.02 In the event of such termination for cause,the CONTRACTOR shall only be paid its
reimbursable costs incurred prior to the effective date of the termination and shall not
be entitled to receive any further progress payment hereunder and shall be further
subject to any claim that the OWNER'S REPRESENTATIVE or the OWNER may
have*against the CONTRACTOR under the provisions of this Agreement or as a
matter of law, including the refund of any overpayments of reimbursable costs or
progress payments.
-3 8-
f
1
42. TERMINATION FOR CONVENIENCE.
42.01 The performance of the work may be terminated at an time in whole or in art b
P Y Y part, Y
the OWNER'S REPRESENTATIVE for its convenience. Any such termination
shall be effected by delivery to the CONTRACTOR of a written notice (notice of
termination) specifying the extent to which performance of the work is terminated
and the date upon which termination becomes effective.If,for whatever reason,this
contract is terminated for cause, which is later determined not to exist, the parties
agree that the contract will be deemed to be terminated for convenience.
42.02 In the event of termination for convenience,the CONTRACTOR shall only be paid
its reimbursable costs incurred prior to the effective date of the termination notice
and shall not be entitled to receive any further progress payment hereunder and shall
be further subject to any claim the OWNER may have against the CONTRACTOR
under other provisions of this Agreement or as a matter of law,including the refund
of any overpayment of reimbursable costs and/or progress payment.
43. COMPLETION AFTER ABANDONMENT OR TERMINATION.
43.01 In the event that the CONTRACTOR has abandoned the project or the OWNER has
terminated the contract for cause and where there is no performance bond provided.
{� p
or where there is a surety but such surety, within seven (7) calendar days after the
notice demanding completion is sent,fails to commence the completion and diligent
• prosecution of the work in compliance with this Agreement,then the OWNER may .
AT ITS OPTION provide for completion of the work in either of the following
elective manners:
43.01.01 The OWNER may employ such force of men and use such
machinery,equipment,tools,materials,and supplies as said OWNER
may deem necessary to complete the work and charge the expense of
such labor, machinery, equipment, tools, materials, and supplies to
said CONTRACTOR,and expense so charged shall be deducted and
paid by the OWNER out of such monies as may be due, or that may
thereafter at any time become due to the CONTRACTOR under and
by virtue of this Agreement. In case such expense is less than the
sum which would have been payable under this contract,if the same
had been completed by the CONTRACTOR, then said
CONTRACTOR and/or its surety hereby waives any and all
privileges,rights, and claims to receive the difference. In case such
expense is greater than the sum which would have been payable
under this contract, if the same had been completed by said
CONTRACTOR, then the CONTRACTOR and/or its surety shall,
within seven(7)calendar days,pay the amount of such excess to the
OWNER.
43.01.02 The OWNER,under sealed bids,after notice published as required by
law at least twice in a newspaper having general circulation in the
city, may let the contract for the completion of the work under
-39-
f
k '
substantially the same terms and conditions which are provided in
this contract. In case any increase in cost to the OWNER under the
y
new contract as compared to what would have been the cost under __a
this contract, such increase shall be charged to the CONTRACTOR
and the surety shall be and remain bound therefor. However,should �,f
the cost to complete any such new contract prove to be less than what
would have been the cost to complete under this contract, the
CONTRACTOR, and/or its surety hereby waives any and all
privileges,rights, and claims to such excess.
43.02 In the event of abandonment by the CONTRACTOR, the CONTRACTOR shall
assign to the OWNER,in the manner and to the extent directed by the OWNER,all t
of the right,title,and interest of the CONTRACTOR in and to any and all materials
located on the property and any subcontracts for work to be performed on the J
property; in which case the OWNER shall have the right to settle or pay all claims
arising out of the termination of such orders and subcontracts.
44. DAMAGES.
44.01 Without prejudice to any other legal or equitable right or remedy that the OWNER
would otherwise possess hereunder or as a matter of law,the OWNER upon giving
the CONTRACTOR five(5) days' prior written notice shall be entitled to damages
for breach of contract,upon but not limited to the following occurrences:
44.01.01 If the CONTRACTOR shall fail to remedy any default after written
notice thereof from the OWNER or the OWNER'S
t .
REPRESENTATIVE; or
44.01.02 If the CONTRACTOR shall fail for any reason other than the failure
by the OWNER to make payments called upon when due; or
1
44.01.03 If the CONTRACTOR commits a substantial default under any of the 1
terms, provisions, conditions, or covenants* contained in this
Agreement.
4
45. INVALIDITY.
If any provision of this Agreement shall be held to be invalid,illegal or unenforceable by a
court or other tribunal of competent jurisdiction,the validity,legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby. The parties
shall use their best efforts to replace the respective provisions or provisions of this
Agreement with the legal terms and conditions approximating the original intent of the
parties.
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{
}
46. ENTIRE AGREEMENT.
It is understood that this Agreement contains the entire agreement between the parties and
supersedes any and all prior agreements,arrangements or understandings between the parties
relating to the subject matter. There are no oral understandings, statements, promises or
' inducements contrary to the terms of this Agreement. This Agreement cannot be changed or
terminated orally. No verbal agreement or conversation with any officer, agent,
representative or employee of the OWNER, either before or after the execution of this
Agreement, shall affect or modify any of the terms or obligations hereunder.
' 47. AMENDMENT.
is
No amendments to this Agreement shall be effective and binding until they are reduced to
writing and signed by duly authorized representatives of both parties.
48. TEXAS LAW.
This Agreement has been made under and shall be governed by the laws of the State of
r Texas.
49. PLACE OF PERFORMANCE. .
The place of making and the place of performance for all purposes shall be Baytown,Harris
County, Texas.
50. NON-WAIVER.
50.01 Failure of any party,at any time,to enforce a provision of this Agreement shall in no
way constitute a waiver of that provision,nor in any way affect the validity of this
Agreement or part hereof or the right of the OWNER or the OWNER'S
REPRESENTATIVE thereafter to enforce each and every provision hereof. No term
of this Agreement shall be deemed waived or breach excused unless the waiver shall
be in writing and signed by the party claimed to have waived the same. Furthermore,
any consent to or waiver of a breach will not constitute consent to or waiver of or
excuse of any other different or subsequent breach.
50.02 Nothingcontained in this Agreement or an of the Contract Documents shall be
� y
deemed to limit or waive the sovereign immunity of the Owner
51. HEADINGS.
The article headings are used in this Agreement for convenience and reference purposes only
and are not intended to define, limit or describe the scope or intent of any provision of this
Agreement and shall have no meaning or effect upon its interpretation.
-41-
i
52. GENDER AND NUMBER.
Words of any gender used in this Agreement shall be held and construed to include any other
gender,and words in the singular number shall be held to include the plural,and vice versa,
unless context requires otherwise.
53. CONSTRUCTION OF AGREEMENT.
The parties agree that this Agreement shall not be construed in favor of or against any party
on the basis that the party did or did not author this Agreement.
Y
1.
54. AUTHORITY TO ENTER CONTRACT.
Each party has the full power and authority to enter into and perform this Agreement,and the
person signing this Agreement on behalf of each party has been properly authorized and
empowered to enter into this Agreement. The persons executing this Agreement hereby
represent that they have authorization to sign on behalf of their respective corporations
and/or business entities.
55. AGREEMENT READ. .
The parties acknowledge that they have read,understand and intend to be bound by the terms
and conditions of this Agreement.
56. ASSIGNMENT.
56.01 CONTRACTOR may not assign or otherwise transfer this Agreement or any rights
or obligations hereunder without the prior written consent of the OWNER.
56.02 CONTRACTOR hereby assigns to OWNER any and all claims for overcharges
associated with this Project,which arise under the antitrust laws of the United States.
CONTRACTOR shall require all subcontractors to make the same assignment to the
OWNER prior to performing any work under this Contract.
57. SUCCESSORS AND ASSIGNS.
This Agreement shall inure to the benefit of and be binding upon the CONTRACTOR and its
successors and assigns.
-42-
58. MULTIPLE ORIGINALS.
It is understood and agreed that this Agreement may be executed in a number of identical
counterparts each of which shall be deemed an original for all purposes,
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiple
' copies,each of which shall bed med to be an igi but all of which sl I constitute but one and
the same Agreement on the_ y of � nal,� ,20 the date of execution by
the City Manager of the City of Baytown.
' Horizon Group Inte national LLC
(Company Na e j
(Signature)
1
A. A. Kashani
' (Printed Name)
President
' (Title)
' CITY OF BAYTOWN
' BERT D. LEIPER, City Manag r
ATTES
c
L TICIA1'SCHty C _;
APPROVED A
■ NACIO RAMIREZ, S City Attorney
APPROVED AS TO FUNDING;
-43-
LOUISE RICHMAN, Director of Finance
A
STATE OF TEXAS §
COUNTY OF HARRIS §
Before me on this day personally appeared AI Kashani , in his/her
capacity as President of Horizon Group International LLC, on behalf of such
corporation or other business entity,
X known to me;
proved to me on the oath of ; or
proved to me through his/her current
{description of identification card
or other document issued by the federal government or any state government that
contains the photograph and signature of the acknowledging person}
(check one)
to be the person whose name is subscribed to the foregoing instrument,and acknowledged to me that
he/she executed that instrument for the purposes and consideration therein expressed.
Given under my hand and seal of office this 5th day of March-01
otary Public in Ad for the State of
SANDRA K. FIELD Texas
• Notary°ubi ."t`e&Texas
MY Com+r�s:._::E; 'res S?!iCi/2013 a
q>� My corr�missiori expires: 11/16/2013
I IN
�J,
__ -44-
S31VII 3 DVM-V 1191 HX3
Page I of 5
General Decision Number: TX120092 10/19/2012 TX92
Superseded General Decision Number: TX20100121
State: Texas
Construction Type: Building
County: Harris County in Texas.
BUILDING CONSTRUCTION PROJECTS (does not include single family
homes or apartments up to and including 4 stories) . (Use
current highway general wage determination for Paving &
Utilities incidental to Building Construction for Harris County �. -
Modification Number Publication Date '
0 01/06/2012
1 04/20/2012
2 10/19/2012
ASBE0022-002 02/02/2011
Rates Fringes
ASBESTOS WORKER/INSULATOR
(Including application of all
:1
insulating materials,
protective coverings,
coatings and finishing to all
type of mechanical systems) . . . . . .$ 20.27 8.92
----------------------------------------------------------------
BOIL0074-002 01/01/2012
Rates Fringes
I
BOILERMAKER. . . . . . . . . . . . . . . . . . . . . .$ 23.06 20.28
----------------------------------------------------------------
CARP0551-001 04/01/2008
Rates Fringes
CARPENTER (Including
Acoustical Ceiling Work) . . . . . . . . .$ 21.00 6.43
----------------------------------------------------------------
ELEC0716-002 08/29/2011 MR
i; Jr
Rates Fringes
ELECTRICIAN (Including
' r
Pulling Wire and Low Voltage }
Wiring and Installation of
Fire Alarms, Security
Systems, Telephones, and
Computers.) . . . . . . . . . . . . . . . . . . . . . .$ 27. 65 7.70 4 -
----------------------------------------------------------------
ELEV0031-001 01/01/2012
i
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Rates Fringes
ELEVATOR MECHANIC. . . . . . . . . . . . . . . .$ 37.355 23.535
�1 0
FOOTNOTES: A. 6% under 5 years based on regular hourly rate
for all hours worked. 8% over 5 years based on regular
hourly rate for all hours worked.
New Year's Day; Memorial Day; Independence Day; Labor Day;
Thanksgiving Day; Friday after Thanksgiving Day; Christmas
Day; and Veterans Day.
--------=-------------------------------------------------------
PLAS0079-001 07/01/2004
S Rates Fringes
PLASTERER. . . . . . . . . . . . . . . . . . . . . . . .$ 19.42 1.00
-----------------------------------------------------------------
Lj
PLUM0068-003 11/21/2011
Rates Fringes
17
LJ Plumbers (Excluding HVAC Pipe) . . .$ 29.54 9.44
----------*------------------------------------------------------
* PLUM0211-004 10/01/2012
7 :
Rates Fringes
Pipefitters (HVAC Pipe Only) . . . . .$ 29.63 10.16
-----------------,-----------------------------------------------
��' SFTX0669-001 04/01/2012
Rates Fringes
i
SPRINKLER FITTER (Fire
Sprinklers)_�_�_�_������. . . . . . . . .$ 25.84 16.47
i ----------------------------------------
4 SHEE0054-004 07/01/2011
Rates Fringes
Sheet metal worker (Including
HVAC Duct and System
Installation) . . . . . . . . . . . . . . . . . . . .$ 25.37 7.99
----------------------------------------------------------------
"- SUTX2005-010 03/24/2005
7 Rates Fringes
L
Asbestos Abatement Worker
(Ceilings, Floors, & Walls
Only) . . . . . . . . . . . . .. . . . . . . . . . . . . . .$ 14.00 0.00
BRICKLAYER. . . . . . . . . . . . . . . . . . . . . . .$ 18.00 0.00
CEMENT MASON/CONCRETE FINISHER. . .$ 12.83 0.00
DRYWALL FINISHER/TAPER. . . . . . . . . . .$ 12.13 1.01
4
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t
DRYWALL HANGER, Includes
Metal Stud Installation. . . . . . . . . .$ 12.96 1.59
Formbuilder/Formsetter. . . . . . . . . . .$ 11.82 0.00
GLAZIER. . . . . . . . . . . . . . . . . . . . . . . . . .$ 14.92 2.78
INSULATOR -BATT AND FOAM. . . . . . . . .$ 10.00 0.00
Ironworkers:
Reinforcing. . . . . . . . . . . . . . . . .$ 12.06 0.00
Structural. . . . . . . . . . . . . . . . . .$ 15.68 0.00
Laborers:
Common. . . . . . . . . . . . . . . . . . . . . .$ 9.29 0.00 y
Mason Tender Brick. . . . . . . . . .$ 10.13 0.00
Mason Tender Cement. . . . . . . . .$ 9.86 0.00
Pipelayer. . . . . . . . . . . . . . . . . . . 12.35 0.00
Plaster Tender. . . . . . . . . . . . . .$ 12.90 2.51
LATHER. . . . . . . . . . . . . . . . . . . . . . . . . . .$ 16.90 3. 61
Painter (Brush, Roller, and
Spray) . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 11.17 0.00 (:
Pipefitters (Excluding HVAC
Pipe) . . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 19.20 8.23
POWER EQUIPMENT OPERATOR:
Asphalt Paver. . . . . . . . . . . . . . .$ 13.50 0.25
Backhoe. . . . . . . . . . . . . . . . . . . . .$ 12.54 0.00
Crane. . . . . . . . . . . . . . . . . . . . . . .$ 17. 95 3.56
Forklift. . . . . . . . . . . . . . . . . . . .$ 15.46 5.15
Slab & Wall Saw. . . . . . . . . . . . .$ 15.54 3.83
ROOFER. . . . . . . . . . . . . . . . . . . . . . . . . . .$ 11.51 0.57
TILE FINISHER. . . . . . . . . . . . . . . . . . . .$ 12.00 0.43
TILE SETTER. . . . . . . . . . . . . . . . . . . . . .$ 15.70 1.09
TRUCK DRIVER. . . . . . . . . . . . . . . . . . . . .$ 10.78 1.57
----------------------------------------------------------------
WELDERS - Receive rate prescribed for craft performing
operation to which welding is incidental.
----------------------------------------------------------------
Unlisted classifications needed for work not included within
the scope of the classifications listed may be added after
award only as provided in the labor standards contract clauses
(29CFR 5.5 (a) (1) (ii) ) .
----------------------------------------------------------------
The body of each wage determination lists the classification
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Page 4 of 5
Lf
and wage rates that have been found '
t g d to be prevailing for the
cited type(s) of construction in the area covered by the wage
determination. The classifications are listed in alphabetical
order of "identifiers" that indicate whether the particular
rate is union or non-union.
s ;
Union Identifiers
Lj
An identifier enclosed in dotted lines beginning with
characters other than "SU" denotes that the union
classification and rate have found to be prevailing for that
U classification. Example: PLUM0198-005 07/01/2011. The
first four letters PLUM, indicate the international union and
the four-digit number, 0198, that follows indicates the local
union number or district council number where applicable ,
i.e. Plumbers Local 0198. The next n e t umber, 005 in the
example, is an internal number used in processing the wage
determination. The date, 07/01/2011, following these
characters is the effective date of the most current
L negotiated rate/collective bargaining agreement which would be
g g g g
July 1, 2011 in the above example.
7 Union prevailing wage rates will be updated to reflect any
changes in the collective bargaining agreements governing the
rate.
f
Lj 0000/9999: weighted union wage rates will be published annually
each January.
L
Non-Union Identifiers
Classifications listed under an "SU" identifier were derived
from survey data by computing average rates and are not union
rates; however, the data used in computing these rates may
include both union and non-union data. Example: SULA2004-007
5/13/2010. SU indicates the rates are not union rates, LA
indicates the State of Louisiana; 2004 is the year of the
survey; and 007 is an internal number used in producing the
wage determination. A 1993 or later date, 5/13/2010, indicates
7the classifications and rates under that identifier were issued
as a General Wage Determination on that date.
7 Survey wage rates will remain in effect and will not change
until a new survey is conducted.
t
k ------------------------------------------------------------------
WAGE DETERMINATION APPEALS PROCESS
1. ) Has there been an initial decision in the matter? This can
be:
* an existing published wage determination
� * a survey underlying a wage determination
* a Wage and Hour Division letter setting forth a position on
a wage determination matter
7
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* a conformance (additional classification and rate) ruling
On survey related matters, initial contact, including requests
for summaries of surveys, should be with the Wage and Hour
Regional Office for the area in which the survey was conducted
because those Regional Offices have responsibility for the '
Davis-Bacon survey program. If the response from this initia•1
contact is not satisfactory, then the process described in 2. )
and 3.) should be followed.
With regard to any other matter not yet ripe for the formal
process described here, initial contact should be with the
Branch of Construction Wage Determinations. Write to:
Branch of Construction Wage Determinations
Wage and Hour Division
U.S. Department of Labor
200 Constitution Avenue, N.W.
Washington, DC 20210 -,.;.V
2. ) If the answer to the question in 1.) is yes, then an
interested party (those affected by the action) can request
review and reconsideration from the Wage and Hour Administrator
(See 29 CFR Part 1.8 and 29 CFR Part 7) . Write to:
Wage and Hour Administrator
U.S. Department of Labor
200 Constitution Avenue, N.W.
Washington, DC 20210
:1
The request should be accompanied by a full statement of the .
interested party's position and by any information (wage
payment data, project description, area practice material,
etc.) that the requestor considers relevant to the issue.
3.) If the decision of the Administrator is not favorable, an
interested party may appeal directly to the Administrative
Review Board (formerly the Wage Appeals Board) . Write to:
Administrative Review Board
U.S. Department of Labor
200 Constitution Avenue, N.W.
Washington,' DC 20210
4. ) All decisions by the Administrative Review Board are final.
----------------------------------------------------------------
END OF GENERAL DECISION 'p'.
}
2
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Page 1 of 4
>
General Decision Number: TX120056 01/06/2012 TX56
..�} Superseded General Decision Number: TX20100066
State: Texas
L Construction Type: Highway
3 Counties: Austin, Brazoria, Chambers, Fort Bend, Galveston,
Hardin, Harris, Jefferson, Liberty, Montgomery, Orange, San
Jacinto and Waller Counties in Texas.
: j HIGHWAY CONSTRUCTION PROJECTS (excluding tunnels, building
structures in rest area projects & railroad construction;
bascule, suspension & spandrel arch bridges designed for
commercial navigation, bridges involving marine construction;
and other major bridges) .
Modification Number Publication Date
0 01/06/2012
* SUTX2011-013 08/10/2011
Rates Fringes
CEMENT MASON/CONCRETE
s FINISHER (Paving and
Structures) . . . . . . . . . . . . . . . . . . . . . .$ 12.98
ELECTRICIAN. . . . . . . . . . . . . . . . . . . . . .$ 27.11
Li
FORM BUILDER/FORM SETTER
Paving & Curb. . ... . . . . . ... . . . .$ 12.34
i Structures. . . . . . . . . . . . . . . . . .$ 12.23
LABORER
Asphalt Raker. . . . . . . . . . . . 12.36
Flagger. . . . . . . . . . . . . . . . . . . . .$ 10.33 '
Laborer, Common. . . . . . . . . . . . .$ 11.02
Laborer, Utility. . . . . .. . . . . . .$ 11.73
Pipelayer. . . . . . . . . . . . . . . . . . .$ 12.12
Work Zone Barricade
Servicer. . . . . . . . . . . . . . . . . . . .$ 11. 67
PAINTER (Structures) . . . . . . . . . . . . .$ 18. 62
POWER EQUIPMENT OPERATOR:
Asphalt Distributor. . . . . . . . .$ 14.06
7 Asphalt Paving Machine. . . . . .$ 14.32
Broom or Sweeper. . . . . . . . . . . .$ 12.68
Concrete Pavement
Finishing Machine. . . . . . . . . . .$ 13.07
7 Concrete Paving, Curing,
Float, Texturing Machine. . . .$ 11.71
Concrete Saw. . . . . . . . . . . . . . . .$ 13.99
7
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Page 2 of 4
Crane, Hydraulic 80 Tons
or less. . . . . . . . . . . . . . . . . . . . .$ 13.86
Crane, Lattice boom 80
tons or less. . . . . . . . . . . . . . . .$ 14.97
Crane, Lattice boom over
80 Tons. . . . . . . . . . . . . . . . . . . . .$ 15.80
Crawler Tractor. . . . . . . . . . . . .$ 13.68
Excavator, 50,000 pounds
or less. . . . . . . . . . . . . . . . . . . . .$ 12.71
Excavator, Over 50,000
pounds. . . . . . . . . . . . . . . . . . . . . .$ 14.53
Foundation Drill, Crawler
Mounted. . . . . . . . . . . . . . . . . . . . .$ 17.43
Foundation Drill, Truck
Mounted. . . . . . . . . . . . . . . . . . . . .$ 15.89
Front 'End Loader 3 CY or
Less. . . . . . . . . . . . . . . . . . . . . . . .$ 13.32
Front End Loader, Over 3 CY.$ 13.17
Loader/Backhoe. . . . . . . . . . . . . .$ 14.29
Mechanic. . . . . . . . . . . . . . . . . . . .$ 16.96
Milling Machine. . . . . . . . . . . . .$ 13.53
Motor Grader, Fine Grade. . . .$ 15. 69
Motor Grader, Rough. . . . . . . . .$ 14.23 FRI
Off Road Hauler. . . . . . . . . . . . .$ 14.60
Pavement Marking Machine. . . .$ 11.18
Piledriver. . . . . . . . . . . . . . . . . .$ 14.95
Roller, Asphalt. . . . . . . . . . . . .$ 11.95
. Roller, Other... . . . . . . . . . . . . .$ 11.57
Scraper. . . . . . . . . . . . . . . . . . . . .$ 13.47
Spreader Box. . . . . . . . . . . . 0 . . 0$ 13.58 ,
Servicer. . . . . . . . . . . . . . . . . . . . . . . . .$ 13.97
Steel Worker FRI
Reinforcing Steel. . . . . . . . . . .$ 15.15
Structural Steel Welder. . . . .$ 12.85
Structural Steel. . . . . . . . . . . .$ 14.39
TRUCK DRIVER
Low Boy Float. . . . . . . . 000 . e . .$ 16.03
Single Axle. . . . . . . . . . . . . . . . .$ 11.46
• ,r
Single or Tandem Axle Dump. .$ 11.48
Tandem Axle Tractor w/Semi '
Trailer. . . . . . . . . . . . . . . . . . . . .$ 12.27
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WELDERS - Receive rate prescribed for craft performing
operation to which welding is incidental.
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Unlisted classifications needed for work not included within
the scope of the classifications listed may be added after
award only as provided in the labor standards contract clauses
(29CFR 5.5 (a) (1) (ii) ) .
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Page 3 of 4
-� The body of each wage determination lists the classification
and wage rates that have been found to be prevailing for the
cited type (s) of construction in the area covered by the wage
determination. The classifications are listed in alphabetical
order of "identifiers" that indicate whether the particular
rate is union or non-union.
Union Identifiers
An identifier enclosed in dotted lines beginning with
characters other than "SU" denotes that the union
1 classification and rate have found to be prevailing for that
classification. Example: PLUM0198-005 07/01/2011. The
first four letters , PLUM, indicate the international union and
� 1 the four-digit number, 0198, that follows indicates the local
union number or district council number where applicable
i.e. , Plumbers Local 0198. The next number, 005 in the
example, is an internal number used in processing the wage
determination. The date, 07/01/2011, following these
characters is the effective date of the most current
negotiated rate/collective bargaining agreement which would be
July 1, 2011* in the above example.
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Union prevailing wage rates will be updated to reflect any
changes in the collective bargaining agreements governing the
rate.
Non-Union Identifiers.
Classifications listed under an "SU" identifier were derived
from survey data by computing average rates and are not union
rates; however, the data used in computing these rates may
include both union and non-union data. Example: SULA2004-007 .
5/13/2010. SU indicates the rates are not union rates, LA
indicates the State of Louisiana; 2004 is the year of the
survey; and 007 is an internal number used in producing the
wage determination. A 1993 or later date, 5/13/2010, indicates
the classifications and rates under that identifier were issued
as a General Wage Determination on that date.
Survey wage rates will remain in effect and will not change
until a new. survey is conducted.
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WAGE DETERMINATION APPEALS PROCESS
1.) Has there been an initial decision in the matter? This can
be:
* an existing published wage determination
* a survey underlying a wage determination
* a Wage and Hour Division letter setting forth a position on
a wage determination matter
* a conformance (additional classification and rate) ruling
On survey related matters, initial contact, including requests
for summaries of surveys, should be with the Wage and Hour
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Page 4 of 4 .
Regional Office for the area in which the survey was conducted
because those Regional Offices have responsibility for the
Davis-Bacon survey program. If the response from this initial
contact is not satisfactory, then the process described in 2.)
and 3. ) should be followed.
With regard to any other matter not yet ripe for the formal
process described here, initial contact should be with the
Branch of Construction Wage Determinations. Write to:
Branch of Construction Wage Determinations
Wage and Hour Division
U.S. Department of Labor
200 Constitution Avenue, N.W.
Washington, DC 20210
2.) If the answer to the question in 1. ) is yes, then an
interested party (those affected by the action) can request
review and reconsideration from the Wage and Hour Administrator
(See 29 CFR Part 1.8 and 29 CFR Part 7) . Write to:
Wage and Hour Administrator
U.S. Department of Labor
200 Constitution Avenue, N.W.
.Washington, DC 20210
The request should be accompanied by a full statement of the
interested party's position and by any information (wage -
payment data, project description, area practice material,
etc.) that the requestor considers relevant to the issue.
3. ) If the decision of the Administrator is not favorable, an
interested party may appeal directly to the Administrative
Review Board (formerly the Wage Appeals Board) . Write to:
Administrative Review Board
U.S. Department of Labor
200 Constitution Avenue, N.W.
Washington, DC 20210
4. ) All decisions by the Administrative Review Board are final.
END OF GENERAL DECISION
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EXHIBIT "B"
Article B-1 Workers' Compensation insurance Coverage.
A. Definitions:
T; Certificate of coverage (certificate)--A copy of a certificate of insurance, a certificate of
authority to self-insure issued by the commission, or a coverage agreement (TWCC-81,
TWCC-82, TWCC-83, or TWCC-94), showing statutory workers' compensation
insurance coverage for the person's or entity's employees providing services on a project,
for the duration of the project.
Duration of the ro'ect--includes the t' 'p erne from the beginning of the work on the project
U until the CONTRACTOR's/person's work on the project has been completed and
accepted by the governmental entity.
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Persons providing services on the project(subcontractor in.4ab.09b)--includes all persons
or entities performing all or part of the services the CONTRACTOR has undertaken to
perform on the project, regardless of whether that person contracted directly with the
CONTRACTOR and regardless of whether that g person has employees. This includes,
without limitation, independent contractors, subcontractors, leasing companies, motor
carvers, owner-operators, employees of any such entity, or employees of any entity
• which furnishes persons to provide services on the project. Services include, without
limitation, providing, hauling, or delivering equipment or materials, or providing labor,
transportation, or other services related to a project. Services do not include activities
unrelated to the project, such as faod/beverage vendors, office supply deliveries, and
delivery of portable toilets.
B. The CONTRACTOR shall provide coverage, based on proper reporting of classification
codes and payroll amounts and filing of any coverage agreements, which meets the
statutory requirements of Texas Labor Code, Section 401.011(44) for all employees of
the CONTRACTOR providing services on the project,for the duration of the project.
C. The CONTRACTOR must provide a certificate of coverage to the governmental entity
• prior to bung awarded the contract.
D. If the coverage period shown on the CONTRACTOR'S current certificate of cover
age
ends during the duration of the project,the CONTRACTOR must, prior to the end of the
coverage period, file a new certificate of coverage with the governmental entity showing
g Y g
that coverage has been extended:
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Updated 0«i=OQ8
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E. The CONTRACTOR shall obtain from each person providing services on a project, and
provide to the governmental entity: `-
a certificate of covers e, rior to that erson be innin work on the(1) g P p beginning
project, so the governmental entity will have on file certificates of coverage
showing coverage for all persons providing services on the project;and
(2) no later than seven days after receipt by the CONTRACTOR, a new
certificate of coverage showing extension of coverage, if the coverage period
shown on the current certificate of coverage ends during the duration of the
project.
Fe The CONTRACTOR shall retain all required certificates of coverage for the duration of
the project and for one year thereafter.
G. The CONTRACTOR shall notify the governmental entity in writing by certified mail or
personal delivery, within 10 days after the CONTRACTOR knew or should have known,
of any change that materially affects the provision of coverage of any person providing
services on the project.
H. The CONTRACTOR shall post on each project site a notice,in the text,form and manner
prescribed by the Texas Workers! Compensation Commission, informing all persons
providing services on the project that they are required to be covered.and stating how a
person may verify coverage and report lack of coverage.
[. The CONTRACTOR shall contractually require each person with whom it contracts to
provide services on a project,to:
(1) provide coverage, based on proper reporting of classification codes and
payroll amounts and riling of any coverage agreements, which meets the
statutory requirements of Texas Labor Code, Section 401.011(44) for all of its employees providing services on the project, for the duration of the
,d
project;
(2) provide to the CONTRACTOR,prior to that person beginning work on the
project, a certificate of coverage showing that coverage is being provided
for all employees of the person providing services on the project, for the _
duration of the project;
(3) provide to the CONTRACTOR, prior to the end of the coverage period,a
new certificate of coverage showing extension of coverage, if the coverage
period shown on the current certificate of coverage ends during the
duration of the project;
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(4) obtain from each other person with whom it contracts, and provide to the
CONTRACTOR:
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(a) a certificate of coverage, prior to the other person
beginning work on the project;and
(b) a new certificate of coverage showing extension of
coverage, prior to the end of the coverage period, if the
coverage period shown on the current certificate of
coverage ends during the duration of the project;
(5) retain all required certificates of coverage on file for the duration of the
project and for one year thereafter;
(6) notify the governmental entity in writing by certified mail or personal
delivery, within 10 days after the person knew or should have known, of
any change that materially affects the provision of coverage of any person
providing services on the project;and
(7) contractually require each person with whom it contracts, to perform as
required by paragraphs (1)-(7). with the certificates of coverage to be
provided to the person for whom they are providing services.
L By signing this contract or providing or causing to be provided a certificate of coverage,
the CONTRACTOR is representing to the governmental entity that all employees of the
CONTRACTOR who will provide services on the project will be covered by workers'
compensation coverage for the duration of the project,that the coverage will be based on
proper reporting of classification codes and payroll amounts, and that all coverage
agreements will be filed with the appropriate insurance carrier or, in the case of a self-
insured, with the commission's Division of Self-Insurance Regulation. Providing false or
misleading information may subject the CONTRACTOR to administrative penalties,
criminal penalties,civil penalties,or other civil actions.
K. The CONTRACTOR's failure to comply with any of these provisions is a breach of
contract by the CONTRACTOR which entitles the governmental entity to declare the
contract void if the CONTRACTOR does not remedythe breach within ten days after
y
receipt of notice of breach from the governmental entity.
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vosae�s osi�ioa�
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Article B-2 Required Notice,
The CONTRACTOR shall post*a notice on each project site informing all persons
providing services on the project that they are required to be cowered,and stating how a person
may verify current coverage and report failure to provide coverage. This notice does not satisfy L J
other posting requirements imposed by the Act or other commission rules. This notice must be
printed with a title in at least 30 point bold type and text in at least 19 point normal type, and
shall be in both English and Spanish and any other language common to the worker population,
The text for the notices shall be the following text provided by the commission on the sample
notice,without any additional words or changes:
REQUIRED WORKERS'COMPENSATION COVERAGE
The law requires that each person working on this site or providing services
related to this construction project must be covered b workers' compensation �
. . , y P
insurance. This includes persons providing, hauling, or delivering equipment or
materials, or providing labor or.transportation or other service related to the
project,regardless of the identity of their employer or status as an employee. ` J
Call the Texas Workers' Compensation Commission at 512440-3789 to receive
information on the legal requirement for coverage, to verify whether your
employer.has provided the required coverage,or to report an employer's failure to
provide coverage.
Article B-3 Required Contract Provision, .
The CONTRACTOR shall include in all contracts to provide service on the project the following
language:
By signing this contract or providing or causing to be provided a certificate of
coverage, the person signing this contract is representing to the governmental
entity that all employees of the person signing this contract who will provide
services on the project will be covered by workers'compensation coverage for the
duration of the project, that the coverage will be based on proper reporting of
classification codes and payroll amounts,and that all coverage agreements will be +
riled with the appropriate insurance carrier or, in the case of a self-insured, with
the commission's Division of Self-insurance Regulation. Providing false or
misleading information may subject the contractor to administrative penalties,
criminal penalties,civil penalties,or other civil actions. _
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Article B 4 Applicability.
1. The coverage requirement in this Exhibit"B"does not apply to sole proprietors,partners,
and corporate officers who meet the requirements of the Act,,406.097(c), and who are explicitly
excluded from coverage in accordance with the Act,.406.097(a) (as added by House Bill 1089,
74th Legislature, 1995,,1.20). This subsection applies only to sole proprietors, partners, and
corporate executive officers who are excluded from coverage in an insurance policy or certificate
of authority to selfinsure that is delivered, issued for delivery,or renewed on or after January 1,
),. 1996.
l
11. The coverage requirement in this Exhibit"B" does not apply to motor carriers who are
required pursuant to Texas Civil Statutes, Article 6675c, to register with the Texas Department
Li of Transportation and who provide accidental insurance coverage pursuant to Texas Civil
Statutes,Article 6675c,40).
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Updated 04313006